Êíèãà: Code 2.0
Ñíîñêè èç êíèãè· #1.
The wiki lives on at http://socialtext.net/codev2.· #1.
Sixth Conference on Computers, Freedom and Privacy. See http://mit.edu/cfp96 (cached: http://www.webcitation.org/5IwlHWL7h· #1.
See Katie Hafner and Matthew Lyon, Where Wizards Stay Up Late (New York: Simon and Schuster, 1996), 10: "Taylor had been the young director of the office within the Defense Department's Advanced Research Projects Agency overseeing computer research . . . Taylor knew the ARPANET and its progeny, the Internet, had nothing to do with supporting or surviving war . . ."· #2.
Paulina Borsook, "How Anarchy Works," Wired 110 (October 1995): 3.10, available at http://www.wired.com/wired/archive/3.10/ietf.html (cached: http://www.webcitation.org/5IwlNFFFn), quoting David Clark.· #3.
James Boyle, talk at Telecommunications Policy Research Conference (TPRC), Washington, D.C., September 28, 1997. David Shenk discusses the libertarianism that cyberspace inspires (as well as other, more fundamental problems with the age) in a brilliant cultural how-to book that responsibly covers both the technology and the libertarianism; see Data Smog: Surviving the Information Glut (San Francisco: Harper Edge, 1997), esp. 174–77. The book also describes technorealism, a responsive movement that advances a more balanced picture of the relationship between technology and freedom.· #4.
See Kevin Kelley, Out of Control: The New Biology of Machines, Social Systems, and theEconomic World (Reading, Mass.: Addison-Wesley, 1994), 119. The term "cybernetics" was coined by a founder of much in the field, Norbert Wiener. See Cybernetics: Or Control and Communication in the Animal and the Machine (Cambridge, Mass.: MIT Press, 1965). See also Flo Conway and Jim Siegelman, Dark Hero of the Information Age: In Search of Norbert Wiener, The Father of Cybernetics (New York: Basic Books, 2004).· #5.
Siva Vaidhyanathan, "Remote Control: The Rise of Electronic Cultural Policy," Annalsof the American Academy of Political and Social Science 597, 1 (January 1, 2005): 122.· #6.
See William J. Mitchell, City of Bits: Space, Place, and the Infobahn (Cambridge, Mass: MIT Press, 1995), 111. In much of this book, I work out Mitchell's idea, though I drew the metaphor from others as well. Ethan Katsh discusses this notion of software worlds in "Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace," University of Chicago Legal Forum (1996): 335, 338. The best current effort is R. Polk Wagner, "On Software Regulation," Southern California Law Review 78 (2005): 457, 470–71.· #7.
Joel Reidenberg discusses the related notion of "lex informatica" in "Lex Informatica: The Formulation of Information Policy Rules Through Technology," Texas Law Review 76 (1998): 553.· #8.
Oliver Wendell Holmes, Jr., "The Path of the Law," Harvard Law Review 10 (1897): 457.· #9.
Mark Stefik, "Epilogue: Choices and Dreams," in Internet Dreams: Archetypes, Myths,and Metaphors, edited by Mark Stefik (Cambridge, Mass.: MIT Press, 1996), 390.· #10.
Mark Stefik, The Internet Edge: Social, Technical, and Legal Challenges for a Net worked World (Cambridge: MIT Press, 1999), 14.· #11.
Missouri v. Holland, 252 US 416, 433 (1920).· #12.
This debate is nothing new to the American democracy. See Does Technology Drive History?: The Dilemma of Technological Determinism, Merritt Roe Smith and Leo Marx eds. (Cambridge: MIT Press, 1994), 1–35 ("If carried to extremes, Jefferson worried, the civilizing process of large-scale technology and industrialization might easily be corrupted and bring down the moral and political economy he and his contemporaries had worked so hard to erect").· #13.
Richard Stallman, for example, organized resistance to the emergence of passwords at MIT. Passwords are an architecture that facilitates control by excluding users not "officially sanctioned." Steven Levy, Hackers (Garden City, N.Y.: Anchor Press/Doubleday, 1984), 422–23.· #1.
Second Life — "What is Second Life?", available at http://secondlife.com/whatis/ (cached: http://www.webcitation.org/5IwlPlof1). The currently leading game, World of Warcraft, claims more than five million alone. Available at http://www.blizzard.com/press/051219.shtml (cached: http://www.webcitation.org/5J9l6E2nF).· #2.
It is also hypothetical. I have constructed this story in light of what could be, and in places is. I'm a law professor; I make up hypotheticals for a living.· #3.
Edward Castronova, Synthetic Worlds: The Business and Culture of Online Games (Chicago: University of Chicago Press, 2005), 55.· #4.
Ibid., 2.· #5.
John Crowley and Viktor Mayer-Schoenberger, "Napster's Second Life? — The Regulatory Challenges of Virtual Worlds" (Kennedy School of Government, Working Paper No. RWP05–052, 2005), 8.· #6.
"MUD" has had a number of meanings, originally Multi-User Dungeon, or Multi-User Domain. A MOO is a "MUD, object-oriented." Sherry Turkle's analysis of life in a MUD or MOO, Life on the Screen: Identity in the Age of the Internet (New York: Simon and Schuster, 1995), is still a classic. See also Elizabeth Reid, "Hierarchy and Power: Social Control in Cyberspace," in Communities in Cyberspace, edited by Marc A. Smith and Peter Kollock (New York: Routledge, 1999), 107. The father — or god — of a MUD named LambdaMOO is Pavel Curtis. See his account in "Mudding: Social Phenomena in Text-Based Virtual Realities," in Stefik, Internet Dreams, 265–92. For two magical pages of links about the history of MUDs, see Lauren P. Burka, "The MUDline," available at http://www.linnaean.org/~lpb/muddex/mudline.html (cached: http://www.webcitation.org/5IwlUROJy); and Lauren P. Burka, "The MUDdex," available at http://www.linnaean.org/~lpb/muddex/ (cached: http://www.webcitation.org/5IwlWqPPL).· #7.
This is not a rare feature of these spaces. It is indeed quite common, at least within role playing games. Julian Dibbell described to me a "parable" he recognized within Ultima Online: As he calls it, the "case of the stolen Bone Crusher." "I got two offers for a Bone Crusher, which is a powerful sort of mace for bopping monsters over the head. I started dealing with both of them. At a certain point I was informed by one of them that the Bone Crusher had been stolen. So I said, `I'll go buy it from the other guy. But, by the way, who was it that stole the Bone Crusher, do you know?' He said the name of the other guy. I was faced with this dilemma of was I going to serve as a fence for this other guy knowingly. And so, I turned to my mentor in this business, the guy who had been doing this for years and makes six figures a year on it, and, you know, I thought of him as an honest guy. So I sort of thought and maybe even hoped that he would just say just walk away. We don't do these kinds of deals in our business. We don't need that, you know, blah, blah, blah. But he said, `Well, you know, thieving is built into the game. It is a skill that you can do. So fair is fair.' It is in the code that you can go into somebody's house and practice your thieving skills and steal something from them. And so, I went ahead and did the deal but there was this lingering sense of, `Wow, in a way that is completely arbitrary that this ability is in the code here whereas, you know, if it wasn't built into the code it would be another story; they would have stolen it in another way.' . . ." "But in Ultima Online, it is very explicitly understood that the code allows you to steal and the rules allow you to steal. For me what was interesting was that there remains this gray area. It made it an interesting game, that you were allowed to do something that was actually morally shady and you might have to decide for yourself. I'm not sure that now, going back to the deal, I would have taken the fenced item. I've been stolen from in the game, according to the rules, and it feels like shit." Audio Tape: Interview with Julian Dibbell (1/6/06) (on file with author).· #8.
And only theft. If you transferred the property for a different purpose — say, sold the property — then the feature wouldn't change.· #9.
Compare Susan Brenner, "The Privacy Privilege: Law Enforcement, Technology and the Constitution," Journal of Technology Law and Policy 7 (2002): 123, 160. ("Pool tables in cyberspace do not require legs in this place where gravity does not exist"), citing Neal Stephenson, Snow Crash (New York: Bantam, 1992), 50 (in the Metaverse, tables only have tops, not legs).· #10.
Jake Baker's given name was Abraham Jacob Alkhabaz, but he changed his name after his parents' divorce. See Peter H. Lewis, "Writer Arrested After Sending Violent Fiction Over Internet," New York Times, February 11, 1995, 10.· #11.
The seven are comp, misc, news, rec, sci, soc, and talk. See Henry Edward Hardy, "The History of the Net, v8.5," September 28, 1993, available at http://www.eff.org/Net_culture/net.history.txt (cached: http://www.webcitation.org/5IwlZ2VhY).· #12.
I have drawn from Jonathan Wallace and Mark Mangan's vivid account in Sex, Laws,and Cyberspace (New York: M&T Books, 1996), 63–81, though more interesting variations on this story circulate on the Net (I'm playing it safe).· #13.
See United States v. Baker, 890 FSupp 1375, 1390 (EDMich 1995); see also Wallace and Mangan, Sex, Laws, and Cyberspace, 69–78.· #14.
See Kurt Eichenwald, "Through His Webcam, a Bot Joins a Sordid Online World," New York Times , December 19, 2005, A1.· #15.
See C. Anderson and B. Bushman, "Effects of Violent Video Games on Aggressive Behavior, Aggressive Cognition, Aggressive Affect, Physiological Arousal, and Prosocial Behavior: A Meta-Analytic Review of the Scientific Literature," Psychological Science 12(5) (2001): 353–359, available at http://www.psychology.iastate.edu/faculty/caa/abstracts/2000-2004/01AB.pdf (cached: http://www.webcitation.org/5IwlayUp8); Jonathan L. Freedman, Media Violence and Its Effect on Aggression (Toronto: Toronto University Press, 2002).· #16.
See William J. Stuntz, "The Substantive Origins of Criminal Procedure," Yale LawJournal 105 (1995): 393, 406–7.· #17.
See, for example, Thomas K. Clancy, "The Role of Individualized Suspicion in Assess ing the Reasonableness of Searches and Seizures," University of Memphis Law Review 25 (1995): 483, 632. "Individualized suspicion . . . has served as a bedrock protection against unjustified and arbitrary police actions."· #18.
See United States v. Place, 462 US 696, 707 (1983).· #19.
James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 4.· #20.
See Susan Freiwald, "Uncertain Privacy: Communication Attributes After the Digital Telephony Act," Southern California Law Review 69 (1996): 949, 951, 954.· #21.
Cf. John Rogers, "Bombs, Borders, and Boarding: Combatting International Terrorism at United States Airports and the Fourth Amendment," Suffolk Transnational Law Review 20 (1997): 501, n.201.· #22.
See Mitchell Kapor, "The Software DesignManifesto," available at http://hci.stanford.edu/bds/1-kapor.html (cached: http://www.webcitation.org/5IwlcyQ3F); David Farber, "A Note on the Politics of Privacy and Infrastructure," November 20, 1993, available at http://www.interesting-people.org/archives/interesting-people/199311/msg00088.html (cached: http://www.webcitation.org/5IwlerVLw); "Quotations," available at http://www.cs.arizona.edu/icon/oddsends/farber.htm (cached: http://www.webcitation.org/5IwlhA4Sz); see also Pamela Samuelson et al., "A Manifesto Concerning the Legal Protection of Computer Programs," Columbia Law Review 94 (1994): 2308. Steven Johnson powerfully makes a similar point: "All works of architecture imply a worldview, which means that all architecture is in some deeper sense political"; see Interface Culture: How New Technology Transforms the Way We Create and Communicate (San Francisco: Harper Edge, 1997), 44. The Electronic Frontier Foundation, originally cofounded by Mitch Kapor and John Perry Barlow, has updated Kapor's slogan "architecture is politics" to "architecture is policy." I prefer the original.· #23.
Jed Rubenfeld has developed most extensively an interpretive theory that grounds meaning in a practice of reading across time, founded on paradigm cases; see "Reading the Constitution as Spoken," Yale Law Journal 104 (1995): 1119, 1122; and "On Fidelity in Constitutional Law," Fordham Law Review 65 (1997): 1469. See also Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Government (New Haven: Yale University Press, 2001).· #24.
See Minnesota v. Dickerson, 508 US 366, 380 (1993) (Justice Antonin Scalia concurring: "I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity. . . .").· #25.
See Steve Silberman, "We're Teen, We're Queer, and We've Got E-Mail," Wired (Novem ber 1994): 76, 78, 80, reprinted in Composing Cyberspace: Identity, Community, and Knowledge in the Electronic Age, edited by Richard Holeton (Boston: McGraw-Hill, 1998), 116.· #26.
Cf. United States v. Lamb, 945 F.Supp 441 (NDNY 1996). (Congress's intent in passing the Child Protection Act was to regulate child pornography via computer transmission, an interest legitimately related to stemming the flow of child pornography.)· #1.
David Johnson and David Post, "Law and Borders — The Rise of Law in Cyberspace," Stanford Law Review 48 (1996): 1367, 1375.· #2.
Tom Steinert-Threlkeld, "Of Governance and Technology," Inter@ctive WeekOnline, October 2, 1998.· #3.
J. C. Herz, Surfing on the Internet: A Nethead's Adventures On-Line (Boston: Little, Brown, 1995), 2–3.· #4.
The design of the network has changed slightly in the years since this was written. Some authentication is now required on the Chicago network, but once Ethernet ports have been assigned an IP address, that address remains "as long as it doesn't misbehave, we won't know that has happened. In that sense, it is much the way it was." Audio Tape: Interview with Greg Jackson (1/9/06) (on file with author).· #5.
See Helen Nissenbaum, "Values in the Design of Computer Systems," Computers andSociety (March 1998): 38.· #6.
As network adminstrator Greg Jackson described to me, while certain ports (including the wireless network) require that the user initially register the machine, there is no ongoing effort to verify the identity of the user. And, more importantly, there are still a significant number of ports which remain essentially unregulated. That doesn't mean that usage, however, isn't regulated. As Jackson described, "But the truth is, if we can identify a particular peer-to-peer network that is doing huge movie sharing, we will assign it a lower priority so it simply moves slower and doesn't interfere with other people. So, we do a lot of packet shaping of that sort. Almost never does that extend to actually blocking particular sites, for example, although there are a few cases where we have had to do that just because . . ." According to Jackson, it is now Columbia that earns the reputation as the free-est network. "Columbia . . . really doesn't ever try to monitor at all who gets on the wired network on campus. They just don't bother with that. Their policy is that they protect applications, not the network." Audio Tape: Interview with Greg Jackson (1/9/06) (on file with author).· #7.
For an extremely readable description, see Peter Loshin_, TCP/IP Clearly Explained_ (San Francisco: Morgan Kaufmann, 1997), 15–23; see also Craig Hunt, TCP/IP Network Administration, 2d ed. (Sebastopol, Cal.: O'Reilly and Associates, 1998), 8–22; Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press, 1999), 29–36.· #8.
Peter Steiner, cartoon, New Yorker, July 5, 1993, 61.· #9.
In some contexts we call a network architecture that solves some of these "imperfections" — that builds in these elements of control — an intranet. Intranets are the fastest-growing portion of the Internet today. They are a strange hybrid of two traditions in network computing — the open system of the Internet, based on TCP/IP, and the control-based capability of traditional proprietary networks layered onto the Internet. Intranets mix values from each to produce a network that is interoperable but gives its controller more control over access than anyone would have over the Internet. My argument in this book is that an "internet" with control is what our Internet is becoming.· #1.
TelecomWorldWire, "Compuserve Moves for Porn Techno Fix," January 11, 1995.· #2.
See Ed Krol, The Whole Internet: User's Guide and Catalogue (Sebastopol, Cal.: O'Reilly and Associates, 1992), 23–25; Loshin, TCP/IP Clearly Explained, 3–83; Hunt, TCP/IP, 1–22; see also Ben M. Segal, "A Short History of Internet Protocols at CERN," available at http://ben.home.cern.ch/ben/TCPHIST.html (cached: http://www.webcitation.org/5IwlkDhXF).· #3.
See Jerome H. Saltzer et al., "End-to-End Arguments in System Design," in IntegratedBroadband Networks, edited by Amit Bhargava (Norwood, Mass.: Artech House, 1991), 30–41.· #4.
Shawn C. Helms, "Translating Privacy Values with Technology," Boston University Jour-nal of Science and Technology Law 7 (2001): 288, 296.· #5.
>For a description of HTTP Protocols as they were used in the early 1990s, see http://www.w3.org/Protocols/HTTP/HTTP2.html (cached: http://www.webcitation.org/5IwlmeauK).· #6.
For an extraordinarily clear explication of the point, see Dick Hardt — Etech 2006: "Who Is the Dick on My Site?" (2006), available at http://www.identity20.com/media/ETECH_2006 (cached: http://www.webcitation.org/5IwlomArK).· #7.
Audio Tape: Interview with Kim Cameron (1/9/06) (on file with author).· #8.
A number of states have now passed legislation dealing with ID theft. A current listing follows: Alabama Alabama Code – 13A-8–190 through 201 Alaska Alaska Stat – 11.46.565 Arizona Ariz. Rev. Stat. – 13–2008 Arkansas Ark. Code Ann. – 5–37–227 California Cal. Penal Code – 530.5–8 Connecticut Conn. Stat. – 53a-129a Conn. Stat. – 52–571h Delaware Del. Code Ann. tit. II, – 854 District of Columbia Title 22, Section 3227 Florida Fla. Stat. Ann. – 817.568 Georgia Ga. Code Ann. – 16–9-120, through 128 Guam 9 Guam Code Ann. – 46.80 Hawaii HI Rev. Stat. – 708–839.6–8 Idaho Idaho Code – 18–3126 Illinois 720 Ill. Comp. Stat. 5/16 G Indiana Ind. Code – 35–43–5-3.5 Iowa Iowa Code – 715A.8 Kansas Kan. Stat. Ann. – 21–4018 Kentucky Ky. Rev. Stat. Ann. – 514.160 Louisiana La. Rev. Stat. Ann. – 14:67.16 Maine ME Rev. Stat. Ann. tit. 17-A –905-A Maryland Md. Code Ann. art. 27 – 231 Massachusetts Mass. Gen. Laws ch. 266, – 37E Michigan Mich. Comp. Laws – 750.285 Minnesota Minn. Stat. Ann. – 609.527 Mississippi Miss. Code Ann. – 97–19–85 Missouri Mo. Rev. Stat. – 570.223 Montana Mon. Code Ann – 45–6-332 Nebraska NE Rev. Stat. – 28–608 and 620 Nevada Nev. Rev. State. – 205.463–465 New Hampshire N.H. Rev. Stat. Ann. – 638:26 New Jersey N.J. Stat. Ann. – 2C:21–17 New Mexico N.M. Stat. Ann. – 30–16–24.1 New York NY CLS Penal – 190.77–190.84 North Carolina N.C. Gen. Stat. – 14–113.20–23 North Dakota N.D.C.C. – 12.1–23–11 Ohio Ohio Rev. Code Ann. – 2913.49 Oklahoma Okla. Stat. tit. 21, – 1533.1 Oregon Or. Rev. Stat. – 165.800 Pennsylvania 18 Pa. Cons. Stat. – 4120 Rhode Island R.I. Gen. Laws – 11–49.1–1 South Carolina S.C. Code Ann. – 16–13–510 South Dakota S.D. Codified Laws – 22–30A-3.1. Tennessee TCA – 39–14–150 TCA – 47–18–2101 Texas Tex. Penal Code – 32.51 Utah Utah Code Ann. – 76–6-1101–1104 Virginia Va. Code Ann. – 18.2–186.3 Washington Wash. Rev. Code – 9.35.020 West Virginia W. Va. Code – 61–3-54 Wisconsin Wis. Stat. – 943.201 Wyoming Wyo. Stat. Ann. – 6–3-901.· #11.
Stewart A. Baker and Paul R. Hurst, The Limits of Trust: Cryptography, Governments,and Electronic Commerce (Boston: Kluwer Law International, 1998), xv.· #12.
See Hal Abelson et al., "The Risks of Key Recovery, Key Escrow, and Trusted Third Party Encryption," World Wide Web Journal 2 (1997): 241, 245: "Although cryptography has traditionally been associated with confidentiality, other cryptographic mechanisms, such as authentication codes and digital signatures, can assure that messages have not been tampered with or forged."· #14.
Whitfield Diffie and Martin E. Hellman, "New Directions in Cryptography," IEEETransactions on Information Theory it–22 (November 1976): 29–40. The idea had apparently been discovered earlier by James Ellis at the British Government Communication Headquarters, but it was not then published; see Baker and Hurst, The Limits of Trust, xvii–xviii.· #15.
Even if the wires are tapped, this type of encryption still achieves its magic. We can get a hint of how in a series of cases whose accumulating impact makes the potential clear. A. If I want to send a message to you that I know only you will be able to read, I can take your public key and use it to encrypt that message. Then I can send that message to you knowing that only the holder of the private key (presumably you) will be able to read it. Advantage: My message to you is secure. Disadvantage: You can't be sure it is I who sent you the message. Because anyone can encrypt a message using your public key and then send it to you, you have no way to be certain that I was the one who sent it. Therefore, consider the next example. B. Before I send the message I have encrypted with your public key, I can encrypt it with my private key. Then when you receive the message from me, you can first decrypt it with my public key, and then decrypt it again with your private key. After the first decryption, you can be sure that I (or the holder of my private key) was the one who sent you the message; after the second decryption, you can be sure that only you (or other holders of your private key) actually read the content of the message. But how do you know that what I say is the public key of Larry Lessig is actually the public key of Larry Lessig? How can you be sure, that is, that the public key you are using is actually the public key it purports to be? Here is where the next example comes in. C. If there is a trustworthy third party (say, my bank, or the Federal Reserve Board, or the ACLU) with a public key (a fact I am able to verify because of the prominence of the institution), and that third party verifies that the public key of Larry Lessig is actually the public key of Larry Lessig, then along with my message sent to you, encrypted first in your public key and second in my private key, would be a certificate, issued by that institution, itself encrypted with the institution's private key. When you receive the message, you can use the institution's public key to decrypt the certificate; take from the certificate my public key (which you now are fairly confident is my public key); decrypt the message I sent you with the key held in the certificate (after which you are fairly confident comes from me); and then decrypt the message encrypted with your public key (which you can be fairly confident no one else has read). If we did all that, you would know that I am who I say I am and that the message was sent by me; I would know that only you read the message; and you would know that no one else read the message along the way.· #16.
Shawn C. Helms, "Translating Privacy Values with Technology," Boston UniversityJournal of Science and Technology Law 7 (2001): 288, 299.· #17.
Ipanema Technologies, "Automatically discover applications running over your net work." Available at http://www.ipanematech.com/New/EN/Solutions.php?niv=2a (cached: http://www.webcitation.org/5IwlrfaFa).· #18.
iProtectYou Pro Web Filter v7.10. See http://www.softforyou.com/ip-index.html (cached: http://cache.codev2.cc/Link_16.pdf).· #19.
Nmap ("Network Mapper"). See http://www.insecure.org/nmap/ (cached: http://www.webcitation.org/5Iwlxlmdy).· #20.
American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), cited in Michael Geist, Cyberlaw 2.0, 44 Boston College Law Review 323, 326–27 (2003).· #21.
Jack Goldsmith and Timothy Wu, Who Controls the Internet: Illusions of a BorderlessWorld (New York: Oxford University Press, 2006), 44.· #22.
MaxMind Home Page, available at http://www.maxmind.com/ (cached: http://www.webcitation.org/5Iwm0Xb51).· #23.
Hostip.info Home Page, available at http://hostip.info.· #24.
Seth Finkelstein, Barbara Nitke and the National Association for Sexual Freedom v. Ashcroft — Declaration of Seth Finkelstein (last updated Fri April 28, 2006), available at http://sethf.com/nitke/declaration.php (cached: http://www.webcitation.org/5Iwm9YLaR).· #25.
Plato's Republic, Book II (Agoura Publications, Inc. 2001).· #1.
Joel R. Reidenberg, "Technology and Internet Jurisdiction," University of PennsylvaniaLaw Review 153 (2005): 1951.· #2.
Since Code v1, there has been an extensive debate about whether government interven tion will be needed to effect important public values. See, e.g., Thomas B. Nachbar, "Paradox and Structure: Relying on Government Regulation to Preserve the Internet's Unregulated Character," Minnesota Law Review 85 (2000): 215 (suggesting intervention needed); Neil Weinstock Netanel, "Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory," California Law Review 88 (2000): 395 (surveying and emphasizing democratic deliberation); Jay P. Kesan, "Private Internet Governance," Loyola University Chicago Law Journal 35 (2003): 87 (surveying failed examples of private regulation); Thomas Schultz, "Does Online Dispute Resolution Need Governmental Intervention? The Case for Architectures of Control and Trust," North Carolina Journal of Law and Technology 6 (2004): 71; Carl Shapiro, "Will ECommerce Erode Liberty?," Harvard Business Review (May-June 2000): 195. (optimistic about market's regulatory effect); Brett Frischmann, "Privatization and Commercialization of the Internet Infrastructure: Rethinking Market Intervention into Government and Government Intervention into the Market," Columbia Science and Technology Law Review 2 (2000/2001): 1 (supporting intervention); Cass R. Sunstein, "Code Comfort," New Republic, Jan. 10, 2002 (optimistic about market response); Henry H. Perritt, Jr., "Towards a Hybrid Regulatory Scheme for the Internet," University of Chicago Legal Forum 215 (2001) (supporting gov't backed private solutions); Jay P. Kesan and Andres A. Gallo, "Optimizing Regulation of Electronic Commerce," University of Cincinnati Law Review 72 (2004): 1497 (brilliant integration of game theory to understand when intervention is required).· #3.
Michael Geist, "Cyberlaw 2.0," Boston College Law Review 44 (2003): 323, 332.· #4.
Transport for London, "Congestion Charging." Available at http://www.tfl.gov.uk/tfl/cclondon/cc_publications-library.shtml#reports (cached: http://www.webcitation.org/5IwmCSVmJ); Center for Trans portation Studies, "London's Congestion Charge Cuts Traffic Delays, Spurs Bus Use" (December 2004), available at http://www.cts.umn.edu/news/report/2004/12/london.html . (cached: http://www.webcitation.org/5Iwrtn8os) and http://www.cts.umn.edu/news/report/2004/12/london.html . (cached: http://www.webcitation.org/5IwrwEbRY); Transport for London, "London Congestion Charging Technology Trials." (February 2005), available at http://www.tfl.gov.uk/tfl/downloads/pdf/congestion-charging/technology-trials.pdf (cached: http://www.webcitation.org/5IwrytXRY).· #5.
See Katie Hafner and Matthew Lyon, Where Wizards Stay Up Late: The Origins of theInternet (New York: Simon and Schuster, 1996), 62–63.· #6.
CALEA authorized distribution of $500 million to cover modifications to telecom munications systems installed or deployed before January 1, 1995. That was estimated to be about 25 percent of the total costs of the modification. House of Representatives, Subcommittee on Crime, Committee on the Judiciary, Testimony on the Implementation of CALEA. Wednesday, October 23, 1997, Testimony of RoyUSTA (available at http://www.fas.org/irp/congress/1997_hr/h971023n.htm; cached: http://www.webcitation.org/5Iws1yfKb).· #7.
Susan P. Crawford, "Symposium, Law and the Information Society, Panel V: Respon sibility and Liability on the Internet, Shortness of Vision: Regulatory Ambition in the Digital Age," 74 Fordham Law Review (2005): 695, 723–24.· #8.
Ibid., 720.· #9.
Susan P. Crawford, "Someone to Watch Over Me: Social Policies for the Internet" 37 (Cardozo Law School Legal Studies Research Paper, No. 129, 2006).· #10.
This is just what happened, Seventh Circuit Court of Appeals Chief Judge Richard Posner argues, when the Warren Court constitutionalized criminal procedure. To compensate for the increased difficulty in convicting a criminal, Congress radically increased criminal punishments. See Richard A. Posner, "The Cost of Rights: Implications for Central and Eastern Europe — and for the United States," Tulsa Law Journal 32 (1996): 1, 7–9. Professor William Stuntz has made a similar point. William J. Stuntz, "The Uneasy Relationship Between Criminal Procedure and Criminal Justice," Yale Law Journal 107 (1997): 1, 4. The Constitution, in this story, acted as an exogenous constraint to which Congress could adjust. If the protections of the Constitution increased, then Congress could compensate by increasing punishments.· #11.
Initially, the CALEA requirements extended to "facilities based" VOIP services only, though the push more recently is to extend it to all VOIP services. See Daniel J. Solove, Marc Rotenberg, and Paul M. Schwartz, Information Privacy Law, 2nd edition (New York: Aspen Publishers, 2006), they summarize the VOIP situation on pp. 287–88: "Voice over Internet Protocol (VoIP)."· #12.
See Federal Communications Commission, Further Notice of Proposed Rulemaking, Released November, 5 1998, at p. 25 ("In the matter of: Communications Assistance for Law Enforcement Act") ("J-STD-025 includes a `location' parameter that would identify the location of a subject's `mobile terminal' whenever this information is reasonably available at the intercept access point and its delivery to law enforcement is legally authorized. Location information would be available to the LEA irrespective of whether a call content channel or a call data channel was employed."). The FBI's desire to gather this information was challenged by civil liberties groups and industry associations. See United States Telecom Association, et al. v. FCC, 227 F.3d 450 (D.C. Cir. 2000). The Court permitted the cell tower information to be revealed, but only with a more substantial burden placed on the government.· #13.
See Center for Democracy and Technology, "FBI Seeks to Impose Surveillance Man dates on Telephone System; Balanced Objectives of 1994 Law Frustrated: Status Report," March 4, 1999, available at http://www.cdt.org/digi_tele/status.html (cached: http://www.webcitation.org/5IwsaQrc7).· #14.
Declan McCullagh, "ISP Snooping Gaining Support," CNET News, Apr. 14, 2006, available at http://news.com.com/ISP+snooping+gaining+support/2100-1028_3-6061187.html (cached: http://www.webcitation.org/5IwsfxhrA). On March 15, 2006, the European Parliament passed a directive concerning the obligations of publicly available communications services with respect to the retention of data. See Eur. Parl. Doc. (COD/2005/0182). Members of Congress have been mulling over similar legislation. See Anne Broache, "U.S. attorney general calls for `reasonable' data retention," CNET News, Apr. 20, 2006, available at http://news.com.com/U.S.+attorney+general+calls+for+reasonable+data+retention/2100-1030_3-6063185.html (cached: http://www.webcitation.org/5IwsiMJus).· #15.
Directive on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC, available at http://register.consilium.eu.int/pdf/en/05/st03/st03677.en05.pdf (cached: http://www.webcitation.org/5IwspCzlR).· #16.
Declan McCullagh, "Bill Would Force Websites to Delete Personal Info," CNET News, Feb. 8, 2006, available at http://news.com.com/2100-1028_3-6036951.html (cached: http://www.webcitation.org/5IwssTqBR).· #17.
For a good discussion of the Clipper controversy, see Laura J. Gurak, Persuasionand Privacy in Cyberspace: The Online Protests over Lotus Marketplace and the Clipper Chip (New Haven: Yale University Press, 1997), 32–43. For a sample of various views, see Kirsten Scheurer, "The Clipper Chip: Cryptography Technology and the Constitution," Rutgers Computer and Technology Law Journal 21 (1995): 263; cf. Howard S. Dakoff, "The Clipper Chip Proposal: Deciphering the Unfounded Fears That Are Wrongfully Derailing Its Implementation," John Marshall Law Review 29 (1996): 475. "Clipper was adopted as a federal information-processing standard for voice communication" in 1994; see Gurak, Persuasion and Privacy in Cyberspace, 125.· #18.
See Electronic Frontier Foundation (EFF), Cracking DES: Secrets of EncryptionResearch, Wiretap Politics, and Chip Design (Sebastopol, Cal.: Electronic Frontier Foundation, 1998), ch. 1.· #19.
For a good summary of the Clipper scheme, see Baker and Hurst, The Limits ofTrust, 15–18; A. Michael Froomkin, "The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution," University of Pennsylvania Law Review 143 (1995): 709, 752–59. For a more technical discussion, see Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in C, 2d ed. (New York: Wiley, 1996): 591–93.· #20.
See Richard Field, "1996: Survey of the Year's Developments in Electronic Cash Law and the Laws Affecting Electronic Banking in the United States," 46 American University Law Review (1997): 967, 993, n.192.· #21.
See A. Michael Froomkin, "It Came from Planet Clipper: The Battle over Crypto graphic Key `Escrow,'" University of Chicago Legal Forum 1996 (1996): 15, 32.· #22.
Anick Jesdanun, "Attacks Renew Debate Over Encryption Software," Chicago Trib-une, September 28, 2001, available at http://www.chicagotribune.com/technology/local/profiles/sns-worldtrade-encryptionsoftware,0,4953744.story?coll=chi-news-hed (cached: http://www.webcitation.org/5IwsvCPpc).· #23.
Jay P. Kesan and Rajiv C. Shah, Shaping Code, 18 Harvard Journal of Law and Tech-nology 319, 326–27 (2005).· #24.
Former Attorney General Richard Thornburgh, for example, has called a national ID card "an infringement on rights of Americans"; see Ann Devroy, "Thornburgh Rules Out Two Gun Control Options; Attorney General Objects to Registration Card for Gun Owners, National Identification Card," Washington Post, June 29, 1989, A41. The Immigration Reform and Control Act of 1986 (Public Law 99–603, 100 Stat 3359 , 8 USC 1324a[c] ) eschews it: "Nothing in this section shall be construed to authorize directly or indirectly, the issuance or use of national identification cards or the establishment of national identification cards." Given the power of the network to link data, however, this seems to me an empty protection. See also Real ID Act, Pub. L. No. 109–13, Title II –202 (2005). The Real ID Act requires citizens to go to the DMV in person, bringing with them several pieces of identification to the DMV, including birth certificates, and face consumers with higher fees and tougher background check. Supporters feel the act targets the link between terrorists, illegal immigrants, and identification standards.· #25.
Jack Goldsmith and Timothy Wu, "Digital Borders," Legal Affairs, Jan./Feb. 2006, 44.· #26.
Notice that this would be an effective end-run around the protections that the Court recognized in Reno v. American Civil Liberties Union, 117 SCt 2329 (1997). There are many "activities" on the Net that Congress could easily regulate (such as gambling). Regulation of these activities could require IDs before access to these activities would be permitted. To the extent that such regulation increases the incidence of IDs on the Net, other speech-related access conditions would become easier to justify.· #27.
Arthur Cordell and T. Ran Ide have proposed the consideration of a bit tax; see Arthur J. Cordell et al., The New Wealth of Nations: Taxing Cyberspace (Toronto: Between the Lines, 1997). Their arguments are compelling from the perspective of social justice and economics, but what they do not account for is the architecture that such a taxing system would require. A Net architected to meter a bit tax could be architected to meter just about anything.· #28.
Countries with such a requirement have included Argentina, Australia, Belgium, Greece, Italy, and Switzerland; see Richard L. Hasen, "Symposium: Law, Economics, and Norms: Voting Without Law?" University of Pennsylvania Law Review 144 (1996): 2135.· #29.
See the description in Scott Bradner, "The Internet Engineering Task Force," in OpenSources: Voices from the Open Source Revolution, edited by Chris DiBona et al. (Sebastopol, Cal.: O'Reilly and Associates, 1999).· #30.
Michael Froomkin makes a similar point: "Export control rules have had an effect on the domestic market for products with cryptographic capabilities such as e-mail, operating systems, and word processors. Largely because of the ban on export of strong cryptography, there is today no strong mass-market standard cryptographic product within the U.S. even though a considerable mathematical and programming base is fully capable of creating one"; "It Came from Planet Clipper," 19.· #31.
See "Network Associates and Key Recovery," available at http://web.archive.org/web/19981207010043/http://www.nai.com/products/security/key.asp (cached: http://www.webcitation.org/5KytMd1L8).· #32.
Cisco has developed products that incorporate the use of network-layer encryption through the IP Security (IPSec) protocol. For a brief discussion of IPSec, see Cisco Systems, Inc., "IP Security–IPSec Overview," available at http://web.archive.org/web/19991012165050/http://cisco.com/warp/public/cc/cisco/mkt/ios/tech/security/prodlit/ipsec_ov.htm (cached: http://www.webcitation.org/5Iwt19135). For a more extensive discussion, see Cisco Systems, Inc., "Cisco IOS Software Feature: Network-Layer Encryption — White Paper"; Cisco Systems, Inc. "IPSec — White Paper," available at http://web.archive.org/web/20020202003100/http://www.cisco.com/warp/public/cc/techno/protocol/ipsecur/ipsec/tech/ipsec_wp.htm (cached: http://www.webcitation.org/5Iwt3l7WB); see also Dawn Bushaus, "Encryption Can Help ISPs Deliver Safe Services," Tele.Com , March 1, 1997; Beth Davis and Monua Janah, "Cisco Goes End-to-End," Information Week, February 24, 1997, 22.· #33.
See Internet Architectural Board statement on "private doorbell" encryption, available at http://www.iab.org/documents/docs/121898.html (cached: http://www.webcitation.org/5Iwt6RMid).· #34.
Little, but not nothing. Through conditional spending grants, the government was quite effective initially in increasing Net participation, and it was effective in resisting the development of encryption technologies; see Whitfield Diffie and Susan Eva Landau, Privacy on the Line: The Politics of Wiretapping and Encryption (Cambridge, Mass.: MIT Press, 1998). Steven Levy tells of a more direct intervention. When Richard Stallman refused to passwordprotect the MIT AI (artificial intelligence) machine, the Department of Defense threatened to take the machine off the Net unless the architectures were changed to restrict access. For Stallman, this was a matter of high principle; for the Department of Defense, it was business as usual; see Steven Levy, Hackers: Heroes of the Computer Revolution (Garden City, N.Y.: Anchor Press/Doubleday, 1984), 416–18.· #35.
On virtual private networks, see Richard Smith, Internet Cryptography (Boston: Addi son-Wesley, 1997) chs. 6, 7; on biometric techniques for security, see Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press, 1999), 123–24, 133–34.· #36.
Jonathan L. Zittrain, "The Generative Internet," 119 Harvard Law Review 1974 (2006).· #37.
Ibid., 2010.· #38.
Ibid., 2012.· #39.
Ibid., 2011.· #42.
Uniting and Strengthening America by Providing Appropriate Tools Required to Inter cept and Obstruct Terrorism (USA PATRIOT ACT) Act, Pub. L. No. 107–56, 155 STAT. 272 (2001); American Civil Liberties Union, Seeking Truth From Justice: PATRIOT Propaganda-The Justice Department's Campaign to Mislead the Public About the USA PATRIOT Act (American Civil Liberties Union, July 9, 2003).· #44.
Roberto Mangabeira Unger, Social Theory: Its Situation and Its Task (New York: Cam bridge University Press, 1987).· #45.
In Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), the core analytic device is dialogue: every assertion of power is met with a demand for justification.· #46.
William J. Mitchell, City of Bits: Space, Place, and the Infobahn" (Cambridge, Mass.: MIT Press, 1996), 112.· #47.
David Brin, The Transparent Society: Will Technology Force Us to Choose Between Pri-vacy and Freedom? (Boulder: Perseus, 1999), 324.· #48.
Though the plan remains uncertain. In June 2006, Google co-founder Sergey Brin expressed some doubts about Google's plans. See Thomas Crampton, "Google Is Voicing Some Doubt Over China," International Herald Tribune, June 7, 2006.· #1.
Mike Godwin, Cyber Rights: Defending Free Speech in the Digital Age (New York: Times Books, 1998), 15. See also Esther Dyson, Release 2.0: A Design for Living in the Digital Age (New York: Broadway Books, 1997), who asserts: "Used right, the Internet can be a powerful enabling technology fostering the development of communities because it supports the very thing that creates a community — human interaction" (32); see also Stephen Doheny-Farina, The Wired Neighborhood (New Haven, Conn.: Yale University Press, 1996), 121–37. For an important collection examining community in cyberspace, see Marc A. Smith and Peter Kollock, Communities in Cyberspace (New York: Routledge, 1999). The collection ranges across the social issues of community, including "social order and control," "collective action," "community structure and dynamics," and "identity." The same relationship between architecture and norms assumed in this chapter guides much of the analysis in Smith and Kollock's collection.· #2.
As I explored in Code v1, the newest "communitarian" on the Net might be business. A number of influential works have argued that the key to success with online businesses is the development of "virtual communities"; see, for example, Larry Downes and Chunka Mui, Unleashing the Killer App: Digital Strategies for Market Dominance (Boston: Harvard Business School Press, 1998), 101–9; John Hagel and Arthur G. Armstrong, Net Gain: Expanding Markets Through Virtual Communities (Boston: Harvard Business School Press, 1997). The explosion of essentially community based entities, such as Wikipedia and MySpace, in the time since confirms the insight of these authors.· #3.
For a detailed study of Internet demographics, see E-Consultancy, Internet StatisticsCompendium, April 12, 2006, available at http://www.e-consultancy.com/publications/internet-stats-compendium/ . (cached: http://www.webcitation.org/5IwtDjaMW).· #4.
For a great sense of how it was, see the articles by Rheingold, Barlow, Bruckman, and Ramo in part 4 of Richard Holeton, Composing Cyberspace: Identity, Community, and Knowledge in the Electronic Age (Boston: McGraw-Hill, 1998). Howard Rheingold's book (the first chapter of which is excerpted in Holeton's book) is also an early classic; see The Virtual Community: Homesteading on the Electronic Frontier (Reading, Mass.: Addison-Wesley, 1993). Stacy Horn's book is a brilliant text taken more directly from the interchange (and more) online; see Cyberville: Clicks, Culture, and the Creation of an Online Town (New York: Warner Books, 1998).· #5.
For an excellent description, see Jonathan Zittrain, "The Rise and Fall of Sysopdom," Harvard Journal of Law and Technology 10 (1997): 495.· #6.
As Steven Johnson puts it: "In theory, these are examples of architecture and urban planning, but in practice they are bound up in broader issues: each design decision echoes and amplifies a set of values, an assumption about the larger society that frames it"; Interface Culture: How New Technology Transforms the Way We Create and Communicate (San Francisco: Harper, 1997), 44. See also Nelson Goodman, "How Buildings Mean," in Reconceptions in Phi-losophy and Other Arts and Sciences, edited by Nelson Goodman and Catherine Z. Elgin (London: Routledge, 1988), 31–48. The same insight applies to things as well as spaces. See Langdon Winner, "Do Artifacts Have Politics?," in The Whale and the Reactor: A Search for Limits in an Age of High Technology (Chicago: University of Chicago Press, 1986), 19–39. To say a space or thing has values, however, does not say it determines any particular result. Influences and agency are many.· #7.
Mark Stefik, The Internet Edge, 14–15.· #8.
Cf. Godwin, Cyber Rights: Defending Free Speech in the Digital Age (New York: Times Books, 1998): ("If you're face-to-face with someone, you're exposed to countless things over which the other person may have had no conscious control — hair color, say, or facial expressions. But when you're reading someone's posted ASCII message, everything you see is a product of that person's mind") 42; see also ibid., 44.· #9.
See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1990), 79–97.· #10.
See Laura J. Gurak, Persuasion and Privacy in Cyberspace: The Online Protests overLotus, Marketplace, and the Clipper Chip (New Haven: Yale University Press, 1997), 12–16. Gurak notes that "pseudonyms, for example, can be used to mask the name of a speaker, so that often it is the ethos of the texts, not the character of the speaker, that does or does not convince others." Cf. Lori Kendall, "MUDder? I Hardly Know 'Er!: Adventures of a Feminist MUDder," in Wired Women: Gender and New Realities in Cyberspace, edited by Lynn Cherny and Elizabeth Reba Weise (Seattle: Seal Press, 1996), 207–233. Godwin describes another possibility, as the ASCII channel on the Net shuts down: "Then, perhaps, the world of ASCII communications will become a preserve for the edgy exchanges of tense text maniacs. Like me"; Cyber Rights, 45.· #11.
This is what economists would call a "separating equilibrium": "players of different types adopt different strategies and thereby allow an uninformed player to draw inferences about an informed player's type from that player's actions"; Douglas G. Baird, Robert H. Gertner, and Randal C. Picker, Game Theory and the Law (Cambridge, Mass.: Harvard University Press, 1994), 314. William Mitchell argues that the advance back to synchronous communication is not necessarily an advantage: "As much more efficient asynchronous communications systems have become commonplace, though, we have seen that strict synchrony is not always desirable; controlled asynchrony may have its advantages"; City of Bits, 5–16.· #12.
On making the Web accessible, see Judy Brewer and Daniel Dardailler, "Web Accessi bility Initiative (WAI)," available at http://www.w3.org/WAI (cached: http://www.webcitation.org/5IwtGZOw1); cf. "Note: Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance," Harvard Law Review 100 (1987): 2035.· #13.
Dawn C. Nunziato, "The Death of the Public Forum in Cyberspace," Berkeley Technol-ogy Law Journal 20 (2005): 1115, 1125.· #14.
See AOL, "About the Company: Profile," available at http://web.archive.org/web/19990202213639/ www.aol.com/corp/profile/. (cached: http://www.webcitation.org/5IwtL33CC), and now available at http://www.corp.aol.com/whoweare/history.shtml (cached: http://www.webcitation.org/5IwtNpDnW).· #15.
Nunziato, "The Death of the Public Forum in Cyberspace," 1125.· #16.
See Kara Swisher, Aol.com: How Steve Case Beat Bill Gates, Nailed the Netheads, and Made Millions in the War for the Web (New York: Times Business, 1998), 65.· #17.
As stated in AOL's Terms of Service (TOS): "As an AOL member you are required to follow our TOS no matter where you are on the Internet." Some of the other terms of service include the following rules: "Language: Mild expletives and nonsexual anatomical references are allowed, but strong vulgar language, crude or explicit sexual references, hate speech, etc., are not. If you see it, report it at Keyword: Notify AOL. Nudity: Photos containing revealing attire or limited nudity in a scientific or artistic context are okay in some places (not all). Partial or full frontal nudity is not okay. If you see it, report it at Keyword: Notify AOL. Sex/Sen suality: There is a difference between affection and vulgarity. There is also a difference between a discussion of the health or emotional aspects of sex using appropriate language, and more crude conversations about sex. The former is acceptable, the latter is not. For example, in a discussion about forms of cancer, the words breast or testicular would be acceptable, but slang versions of those words would not be acceptable anywhere. Violence and Drug Abuse: Graphic images of humans being killed, such as in news accounts, may be acceptable in some areas, but blood and gore, gratuitous violence, etc., are not acceptable. Discussions about coping with drug abuse in health areas are okay, but discussions about or depictions of illegal drug abuse that imply it is acceptable are not."· #18.
See Amy Harmon, "Worries About Big Brother at America Online," New York Times, January 31, 1999, 1.· #19.
Just as version 2 of this book was being completed, AOL switched to a free online serv ice. The full scope of the change that this will involve is not yet clear. I have therefore framed this discussion in the past tense.· #20.
Swisher, Aol.com, 314–15. Available at http://legal.web.aol.com/aol/aolpol/comguide.html (cached: http://www.webcitation.org/5IwtQ5mrQ).· #21.
Ibid., 96–97.· #22.
See Robert C. Post, Constitutional Domains: Democracy, Community, Management (Cambridge, Mass.: Harvard University Press, 1995), 199–267.· #23.
See CyberPromotions, Inc. v. America Online, Inc., 948 FSupp 436 (EDPa 1996) (holding that a company has no free speech right under the United States, Pennsylvania, or Virginia Constitutions to send unsolicited e-mail over the Internet to a competitor's customers).· #24.
Nunziato, "The Death of the Public Forum in Cyberspace," 1121.· #25.
Ibid., 1122.· #26.
E-mail from Alan Rothman to David R. Johnson (February 5, 2006) (on file with author): "When CC permanently went offline in June 1999, several members had established two new forums over on in anticipation of this on Delphi called Counsel Cafe and Counsel Politics. The end was approaching and this was viewed as a virtual lifeboat for the devoted and cohesive community that had thrived on CC. About 100 CC survivors washed up together to settle in these new forums. Both were established as being private but members were allowed to invite friends."· #27.
See Elizabeth Reid, "Hierarchy and Power: Social Control in Cyberspace," in Commu-nities in Cyberspace, edited by Marc A. Smith and Peter Kollock (London: Routledge, 1999), 109.· #30.
See Josh Quittner, "Johnny Manhattan Meets the Furry Muckers," Wired (March 1994): 92, available at http:// www.wired.com/wired/archive/2.03/muds.html (cached: http://www.webcitation.org/5IwtTXfb0).
See Julian Dibbell, "A Rape in Cyberspace," Village Voice, December 23, 1993, 36, 37, available at http://loki.stockton.edu/~kinsellt/stuff/dibbelrapeincyberspace.html (cached: http://www.webcitation.org/5IwtVySlI).· #32.
In particular, see Dibbell's extraordinary My Tiny Life: Crime and Passion in a VirtualWorld (London: Fourth Estate, 1998).· #34.
Ibid., 13–14.· #35.
If anything, the sexuality of the space invited adolescent responses by adolescents; see Scott Bukatman, Terminal Identity: The Virtual Subject in Postmodern Science Fiction (Durham, N.C.: Duke University Press, 1993), 326. On MOOs in particular, see Dibbell, My Tiny Life . The challenge for the community was to construct norms that would avoid these responses without destroying the essential flavor of the space.· #36.
Dibbell, My Tiny Life, 24–25.· #37.
See Rebecca Spainhower, "Virtually Inevitable": Real Problems in Virtual Communities (Evanston, Ill.: Northwestern University Press, 1994), available at http://web.archive.org/web/19990202105057re_/vesta.physics.ucla.edu/~smolin/lambda/laws_and_history/ballothistory (cached: http://www.webcitation.org/5KcFzqBdg).· #38.
For a rich account of both the democracy and how it functions, and the implications for self-regulation with a MUD, see Jennifer Mnookin, "Virtual(ly) Law: The Emergence of Law on LambdaMOO," Journal of Computer-Mediated Communication 2 (1996): 1.· #40.
Hafner and Lyon, Where Wizards Stay Up Late, 216. "Flaming" is e-mail or other elec tronic communication that expresses exaggerated hostility; see Gurak, Persuasion and Privacy in Cyberspace, 88.· #41.
Mnookin, "Virtual(ly) Law," 14.· #42.
One student of mine studied this behavior and concluded that the difference was sig nificant. That study was limited, however, by a relatively small sample. On the question more generally, Gurak reaches a different conclusion about whether cyberspace remedies gender imbalances; Persuasion and Privacy in Cyberspace, 104–13.· #43.
Audio Tape: Interview with Julian Dibbell (1/6/06) (on file with author).· #44.
MMOGCHART.com Home Page, available at http://mmogchart.com/ (cached: http://www.webcitation.org/5IwtbpPE9).· #45.
Audio Tape: Interview with Philip Rosedale (1/13/06) (on file with author).· #46.
Castronova, Synthetic Worlds, 2.· #47.
Julian Dibbell, "Dragon Slayers or Tax Evaders?," Legal Affairs (Jan./Feb. 2006): 47.· #48.
Castronova, Synthetic Worlds, 19.· #49.
Audio Tape: Interview with Philip Rosedale (1/16/06) (on file with author).· #50.
Lawrence Lessig, Free Culture: The Nature and Future of Creativity (New York: Penguin, 2004), 2–3, discussing United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that there could be a "taking" if the government's use of its land effectively destroyed the value of the Causbys' land. This example was suggested to me by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Minneola, N.Y.: Foundation Press, 1984), 1112–13.· #51.
St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18.· #52.
J. D. Lasica, Darknet: Hollywood's War Against the Digital Generation (New York: Wiley, 2005), 248.· #53.
Ibid., 246.· #54.
See Jerome H. Saltzer et al., "End-to-End Arguments in System Design," in IntegratedBroadband Networks, edited by Amit Bhargava (New York: Elsevier Science Publishing Co., 1991), 30.· #55.
Susan P. Crawford, "Symposium, Law and the Information Society, Panel V: Respon sibility and Liability on the Internet, Shortness of Vision: Regulatory Ambition in the Digital Age," Fordham Law Review 74 (2005) 695, 700–701.· #56.
Audio Tape: Interview with Philip Rosedale (1/13/06) (on file with author).· #57.
See Lessig, Free Culture: The Nature and Future of Creativity, 330, n.9: Fisher's proposal is very similar to Richard Stallman's proposal for DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. See http://www.wired.com/wired/archive/1.03/1.3_stallman.copyright.html (cached: http://www.webcitation.org/5IwteUMWm).· #58.
See Audio Home Recording Act, 17 USC 1002 (1994) (requiring the serial copy man agement system); see also U.S. Department of Commerce, Intellectual Property and the National Information Infrastructure: Report of the Working Group on Intellectual Property Rights (Washington, D.C.: Information Infrastructure Task Force, 1995), 179, 189–90.· #59.
See 47 CFR 15.120; see also Telecommunications Act of 1996 Pub.L. 104–104, 551, 110 Stat. 56, 139–42 (1996), 47 USC 303 (1998) (providing for study and implementation of video blocking devices and rating systems).· #60.
The consequence of an efficient v-chip on most televisions would be the removal of the standard justification for regulating content on broadcasting. If users can self-filter, then the FCC need not do it for them; see Peter Huber, Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm (New York: Oxford University Press, 1997), 172–73.· #61.
Digital Millenium Copyright Act, 17 U.S.C. –– 512, 1201–1205, 1201(a)(2), 1201(b)(1)(A) (1998).· #62.
See Electronic Frontier Foundation, "DVD-CCA v. Bunner and DVD-CCA v. Pavlovich" available at http://www.eff.org/IP/Video/DVDCCA_case/ (cached: http://www.webcitation.org/5Iwth71IJ); DVD Copy Control Association, Inc. v. Bunner, 31 Cal. 4th 864 (Cal. 2003); Pavlovich v. Superior Court, 29 Cal. 4th 262 (Cal. 2002); Universal Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).· #63.
Archive of developments involving Dmitri Sklyarov, his arrest, and trial, available at http://www.freesklyarov.org/ (cached: http://www.webcitation.org/5IwtkEBvu).· #64.
Electronic Frontier Foundation, "Unintended Consequences: Seven Years Under the DMCA," available at http://www.eff.org/IP/DMCA/?f=unintended_consequences.html (cached: http://www.webcitation.org/5IwtoW6Wo).· #65.
See Chamberlain Group, Inc. v. Skylink Technologies, Inc., 544 U.S. 923 (2005).· #66.
Crawford, "Symposium, Law and the Information Society, Panel V," 695, 710.· #67.
The most significant cost is on innovation. If the broadcast flag requirement reaches any device capable of demodulating digital television, then its requirement reaches any digital device on the network. It would be the first time network applications would have to comply with a technical mandate of such breadth, and it would be an unmanageable burden for open source and free software deployments.· #68.
R. Polk Wagner, On Software Regulation , Southern California Law Review 78 (2005): 457, 470–71. See also Joel R. Reidenberg, "Technology and Internet Jurisdiction," University of Pennsylvania Law Review 153 (2005): 1951; Joshua A. T. Fairfield, "Cracks in the Foundation: The New Internet Legislation's Hidden Threat to Privacy and Commerce," Arizona State Law Journal 36 (2004): 1193 (arguing Congress should be more jurisdictionally exceptional and less content exceptional in its regulation of cyberspace).· #69.
Timothy Wu, "When Code Isn't Law," Virginia Law Review 89 (2003): 679, 707–8.· #70.
Ibid., 682.· #1.
Or more precisely, against a certain form of government regulation. The more powerful libertarian arguments against regulation in cyberspace are advanced, for example, by Peter Huber in Law and Disorder in Cyberspace. Huber argues against agency regulation and in favor of regulation by the common law. See also Thomas Hazlett in "The Rationality of U.S. Regulation of the Broadcast Spectrum," Journal of Law and Economics 33 (1990): 133, 133–39. For a lawyer, it is hard to understand precisely what is meant by "the common law." The rules of the common law are many, and the substantive content has changed. There is a common law process, which lawyers like to mythologize, in which judges make policy decisions in small spaces against the background of binding precedent. It might be this that Huber has in mind, and if so, there are, of course, benefits to this system. But as he plainly understands, it is a form of regulation even if it is constituted differently.· #2.
The primary examples are the convictions under the Espionage Act of 1917; see, for example, Schenck v. United States, 249 US 47 (1919) (upholding conviction for distributing a leaflet attacking World War I conscription); Frohwerk v. United States, 249 US 204 (1919) (upholding conviction based on newspaper alleged to cause disloyalty); Debs v. United States, 249 US 211 (1919) (conviction upheld for political speech said to cause insubordination and disloyalty).· #3.
See, for example, the work of John R. Commons, Legal Foundations of Capitalism (1924), 296–98, discussed in Herbert Hovenkamp, Enterprise and American Law, 1836–1937 (Cambridge, Mass.: Harvard University Press, 1991), 235; see also John R. Commons, Institutional Economics: Its Place in Political Economy (1934) (New Brunswick, N.J.: Transaction Publishers reprint, 1990).· #4.
The general idea is that the tiny corrections of space enforce a discipline, and that this discipline is an important regulation. Such theorizing is a tiny part of the work of Michel Foucault; see Discipline and Punish: The Birth of the Prison (New York: Vintage, 1979), 170–77, though his work generally inspires this perspective. It is what Oscar Gandy speaks about in The Panoptic Sort: A Political Economy of Personal Information (Boulder: Westview Press, 1993), 23. David Brin makes the more general point that I am arguing — that the threat to liberty is broader than a threat by the state; see The Transparent Society, 110.· #5.
See, for example, The Built Environment: A Creative Inquiry into Design and Planning, edited by Tom J. Bartuska and Gerald L. Young (Menlo Park, Cal.: Crisp Publications, 1994); Preserving the Built Heritage: Tools for Implementation, edited by J. Mark Schuster et al. (Hanover, N.H.: University Press of New England, 1997). In design theory, the notion I am describing accords with the tradition of Andres Duany and Elizabeth Plater-Zyberk; see, for example, William Lennertz, "Town-Making Fundamentals," in Towns and Town-Making Principles, edited by Andres Duany and Elizabeth Plater-Zyberk (New York: Rizzoli, 1991): "The work of . . . Duany and . . . Plater-Zyberk begins with the recognition that design affects behavior. [They] see the structure and function of a community as interdependent. Because of this, they believe a designer's decisions will permeate the lives of residents not just visually but in the way residents live. They believe design structures functional relationships, quantitatively and qualitatively, and that it is a sophisticated tool whose power exceeds its cosmetic attributes" (21).· #6.
Elsewhere I've called this the "New Chicago School"; see Lawrence Lessig, "The New Chicago School," Journal of Legal Studies 27 (1998): 661. It is within the "tools approach" to government action (see John de Monchaux and J. Mark Schuster, "Five Things to Do," in Schuster, Preserving the Built Heritage, 3), but it describes four tools whereas Schuster describes five. I develop the understanding of the approach in the Appendix to this book.· #7.
These technologies are themselves affected, no doubt, by the market. Obviously, these constraints could not exist independently of each other but affect each other in significant ways.· #8.
Lasica, Darknet, 16. See also Lior Jacob Strahilevitz, "Charismatic Code, Social Norms and the Emergence of Cooperation on the File-Swapping Networks," 89 Virginia Law Review (2003), 505 (arguing that charismatic code creates an illusion of reciprocity that accounts for why people contribute to a filesharing network).· #9.
Jay Kesan has offered a related, but more expansive analysis. See Jay P. Kesan and Rajiv C. Shah, "Shaping Code," Harvard Journal of Law and Technology 18 (2005): 319, 338.· #10.
See Michelle Armond, "Regulating Conduct on the Internet: State Internet Regulation and the Dormant Commerce Clause," Berkeley Technology Law Journal 17 (2002): 379, 380.· #11.
See, for example, the policy of the Minnesota attorney general on the jurisdiction of Minnesota over people transmitting gambling information into the state; available at http://web.archive.org/web/20000816215338/http://www.ag.state.mn.us/home/consumer/consumernews/OnlineScams/memo.html (cached: http://www.webcitation.org/5IwtqoSHt).· #12.
See, for example, Playboy Enterprises v. Chuckleberry Publishing, Inc., 939 FSupp 1032 (SDNY 1996); United States v. Thomas, 74 F3d 701 (6th Cir 1996); United States v. Miller, 166 F3d 1153 (11th Cir 1999); United States v. Lorge, 166 F3d 516 (2d Cir 1999); United States v. Whiting, 165 F3d 631 (8th Cir 1999); United States v. Hibbler, 159 F3d 233 (6th Cir 1998); United States v. Fellows, 157 F3d 1197 (9th Cir 1998); United States v. Simpson, 152 F3d 1241 (10th Cir 1998); United States v. Hall, 142 F3d 988 (7th Cir 1998); United States v. Hockings, 129 F3d 1069 (9th Cir 1997); United States v. Lacy, 119 F3d 742 (9th Cir 1997); United States v. Smith, 47 MJ 588 (CrimApp 1997); United States v. Ownby, 926 FSupp 558 (WDVa 1996).· #13.
See Julian Dibbell, "A Rape in Cyberspace," Village Voice, December 23, 1993, 36.· #14.
Norms are something different — more directly regulating user behavior. See Daniel Benoliel, Technological Standards, Inc.: Rethinking Cyberspace Regulative Epistemology , 92 California Law Review 1069, 1077 (2004).· #15.
See, for example, "AOL Still Suffering but Stock Price Rises," Network Briefing, January 31, 1997; David S. Hilzenrath, "`Free' Enterprise, Online Style; AOL, CompuServe, and Prodigy Settle FTC Complaints," Washington Post, May 2, 1997, G1; "America Online Plans Better Information About Price Changes," Wall Street Journal, May 29, 1998, B2; see also Swisher, Aol.com, 206–8.· #16.
USENET postings can be anonymous; see Henry Spencer and David Lawrence, Man aging USENET (Sebastopol, Cal.: O'Reilly and Associates, 1998), 366–67.· #17.
Web browsers make this information available, both in real time and archived in a cookie file; see http://www.cookiecentral.com/faq.htm (cached: http://www.webcitation.org/5Iwtsr5Vb). They also permit users to turn this tracking feature off.· #18.
PGP is a program to encrypt messages that is offered both commercially and free.· #19.
Encryption, for example, is illegal in some international contexts; see Baker and Hurst, The Limits of Trust, 130–36.· #20.
Mitchell, City of Bits, 159.· #21.
See Ethan Katsh, "Software Worlds and the First Amendment," 335, 340. "If a compar ison to the physical world is necessary, one might say that the software designer is the architect, the builder, and the contractor, as well as the interior decorator."· #22.
See Rummel v. Estelle, 445 US 263, 274 n.11 (1980).· #23.
Interestingly — and again, a reason to see the future of regulation talk located else where — this is not true of architects. An example is the work of John de Monchaux and J. Mark Schuster. In their essay "Five Things to Do" and in the collection that essay introduces, Preserving the Built Heritage, they describe the "five and only five things that governments can do — five distinct tools that they can use — to implement their" policies (4–5): ownership and operation (the state may own the resource); regulation (of either individuals or institutions); incentives; property rights; information. Monchaux and Schuster's five tools map in a complex way on the structure I have described, but significantly, we share a view of regulation as a constant trade-off between tools.· #24.
See, for example, James C. Carter, The Provinces of the Written and the Unwritten Law (New York: Banks and Brothers, 1889), who argues that the common law cannot be changed (38–41).· #25.
See, for example, the discussion of wage fund theory in Hovenkamp, Enterprise andAmerican Law, 193–96.· #26.
For a fascinating account of the coming of age of the idea that the natural environment might be tamed to a productive and engineered end, see John M. Barry, Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America (New York: Simon and Schuster, 1997).· #27.
As Roberto Unger puts it, "Modern social thought was born proclaiming that society is made and imagined, that it is a human artifact rather than the expression of an underlying natural order"; Social Theory, 1.· #28.
The idea of a free market was the obsession of the realists, especially Robert Hale; see Barbara H. Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Mass.: Harvard University Press, 1998): "Economic life, like Clark's moral market, was constituted by a regime of property and contract rights that were neither spontaneously occurring nor self-defining, but were rather the positive creation of the state" (2–3). For a modern retelling, see Cass R. Sunstein, The Partial Constitution (Cambridge, Mass.: Harvard University Press, 1993), 51–53.· #29.
Americans with Disabilities Act (ADA) of 1990, 42 USC –– 12101 et seq. (1994).· #30.
See Alain Plessis, The Rise and Fall of the Second Empire, 1852–1871 (1979) translated by Jonathan Mandelbaum (English-language edition, New York: Cambridge University Press, 1985), 121; "Haussmann, Baron Georges-Eug–ne," in Encyclopedia Britannica, 5th ed., (1992). Steven Johnson criticizes other aspects of the change in Interface Culture, 63–64.· #31.
See Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Alfred A. Knopf, 1974), 318.· #32.
Ralph Nader, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile (New York: Grossman, 1965), xciii.· #33.
See Neal Kumar Katyal, "Architecture as Crime Control," 111 Yale Law Journal 1039 (2002).· #34.
Ibid., 1047.· #35.
Ibid., 1048.· #36.
Brin, The Transparent Society , 293.· #37.
Consider civil rights in the American South. During the legislative hearings on the Civil Rights Act of 1964, supporters of the bill called before the committee white, southern employers and business owners whose discrimination against blacks was the prime target of the legislation. Some of these employers and businessmen supported the bill because business would improve: The labor pool would increase, causing wages to decrease, and the demand for services would increase — so long, that is, as whites did not shift their custom. This last point is what set the stage for business support for the Civil Rights Act. What business leaders feared was the retaliation of whites against their voluntary efforts to integrate. The Civil Rights Act changed the context to make discrimination against blacks illegal. The businessman could then — without fear of the retaliation of whites — hire or serve a black because of either his concern for the status of blacks or his concern to obey the law. By creating this ambiguity, the law reduced the symbolic costs of hiring blacks. This example demonstrates how law can change norms without government having control over the norms. In this case, the norm of accommodating blacks was changed by giving it a second meaning — the norm of simply obeying the law; see Lessig, "The Regulation of Social Meaning," 965–67.· #38.
Thurgood Marshall, Esq., oral argument on behalf of respondents, Cooper v. Aaron, 358 US 1 (1958) (no. 1), in Fifty-four Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, edited by Philip B. Kurland and Gerhard Casper (Washington, D.C.: University Publications of America, 1975), 533, 713.· #39.
See, for example, Dyson, Release 2.0: "Government can play a divisive role vis-–-vis communities. Often, the more government provides, the less community members themselves contribute" (43); in "The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action" (University of Chicago Law Review 63 : 133), Eric A. Posner argues that government help to a community can undermine the community.· #40.
R. Polk Wagner, "On Software Regulation," Southern California Law Review 78 (2005): 457, 487.· #41.
Ibid., 474.· #42.
Ibid., 465.· #43.
Cass Sunstein points to seatbelt law as a hypothetical of "government regulation per mit[ing] people to express preferences by using the shield of the law to lessen the risk that private actors will interfere with the expression [through normative censure]"; "Legal Interference with Private Preferences," University of Chicago Law Review 53 (1986): 1129, 1145. Alternatively, seatbelt laws have been used as the factual basis for critiques of norm sponsorship as ineffective and no substitute for direct regulation; see Robert S. Alder and R. David Pittle, "Cajolery or Command: Are Education Campaigns an Adequate Substitute for Regulation?" Yale Journal on Regulation 1 (1984): 159, 171–78. However, the observations may have been premature. John C. Wright, commenting on television's normative content, claims that "we have won the battle on seatbelts, just by a bunch of people getting together and saying, `It is indeed macho to put on a seatbelt. It is macho and it is smart and it is manly and it is also feminine and smart and savvy and charming to put on a seatbelt'"; Charles W. Gusewelle et al., "Round Table Discussion: Violence in the Media," Kansas Journal of Law and Public Policy 4 (1995): 39, 47.· #44.
The analysis here was in part suggested by Minow, Making All the Difference .· #45.
See Tracey L. Meares, "Social Organization and Drug Law Enforcement," AmericanCriminal Law Review 35 (1998): 191.· #46.
Eric Posner ("The Regulation of Groups") points to contexts within which govern ment action may have had this effect.· #47.
See Tracey L. Meares, "Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law," Buffalo Criminal Law Review 1 (1997): 137.· #48.
In the mid-1970s the U.S. government sponsored a campaign to spray paraquat (a her bicide that causes lung damage to humans) on the Mexican marijuana crop. This sparked a public outcry that resulted in congressional suspension of funding in 1978. However, following a congressional amendment in 1981, paraquat spraying was used on the domestic marijuana crop during the 1980s. The publicity surrounding the use of paraquat in Mexico is generally believed to have created a boom in the domestic marijuana industry and also an increase in the popularity of cocaine during the 1980s. See generally Michael Isikoff, "DEA Finds Herbicides in Marijuana Samples," Washington Post, July 26, 1989, 17. In "Drug Diplomacy and the Supply-Side Strategy: A Survey of United States Practice" (Vanderbilt Law Review 43 : 1259, 1275 n.99), Sandi R. Murphy gives a full history of the laws passed relevant to paraquat; see also "A Cure Worse Than the Disease?," Time, August 29, 1983, 20.· #49.
Roe v. Wade, 410 US 113 (1973).· #50.
Rust v. Sullivan, 500 US 173 (1991).· #51.
Maher v. Roe, 432 US 464 (1977).· #52.
Hodgson v. Minnesota, 497 US 417 (1990).· #53.
This distinction between "direct" and "indirect" regulation, of course, has a long and troubled history in philosophy as well as in law. Judith J. Thomson describes this difference in her distinction between the trolley driver who must run over one person to save five and the surgeon who may not harvest the organs from one healthy person to save five dying people; see "The Trolley Problem," Yale Law Journal 94 (1985): 1395, 1395–96. This difference is also known as the "double effect doctrine," discussed in Philippa Foot, "The Problem of Abortion and the Doctrine of the Double Effect," in Virtues and Vices and Other Essays in Moral Philosophy (Berkeley: University of California Press, 1978), 19. See also Thomas J. Bole III, "The Doctrine of Double Effect: Its Philosophical Viability," Southwest Philosophy Review 7 (1991): 91; Frances M. Kamm, "The Doctrine of Double Effect: Reflections on Theoretical and Practical Issues," Journal of Medicine and Philosophy 16 (1991): 571; Warren Quinn, "Actions, Intentions, and Consequences: The Doctrine of Double Effect," Philosophy and Public Affairs 18 (1989): 334. The trouble in these cases comes when a line between them must be drawn; here I do not need to draw any such line.· #54.
Richard Craswell suggests other examples making the same point: The government could (a) regulate product quality or safety directly or (b) disclose information about different products' quality or safety ratings, in the hope that manufacturers would then have an incentive to compete to improve those ratings; the government could (a) allow an industry to remain monopolized and attempt directly to regulate the price the monopolist charged or (b) break up the monopolist into several competing firms, in the hope that competition would then force each to a more competitive price; the government could (a) pass regulations directly requiring corporations to do various things that would benefit the public interest or (b) pass regulations requiring that corporate boards of directors include a certain number of "independent" representatives, in the hope that the boards would then decide for themselves to act more consistently with the public interest.· #55.
See New York v. United States, 505 US 144 (1992).· #56.
Lee Tien identifies other important problems with architectural regulation in "Archi tectural Regulation and the Evolution of Social Norms," International Journal of Communications Law and Policy 9 (2004): 1.· #57.
Aida Torres, "The Effects of Federal Funding Cuts on Family Planning Services, 1980–1983," Family Planning Perspectives 16 (1984): 134, 135, 136.· #58.
Rust v. Sullivan, USNY (1990) WL 505726, reply brief, *7: "The doctor cannot explain the medical safety of the procedure, its legal availability, or its pressing importance to the patient's health."· #59.
See Madsen v. Women's Health Center, Inc., 512 US 753, 785 (1994) (Justice Antonin Scalia concurring in the judgment in part and dissenting in part: Today's decision . . . makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion [quoting _Thornburgh v. American College of Obstetricians and Gynecologists,_ 476 US 747, 814 (1986) (Justice Sandra Day O'Connor dissenting)]).· #60.
Shelley v. Kraemer, 334 US 1 (1948).· #61.
See Herman H. Long and Charles S. Johnson, People Versus Property: Race-RestrictiveCovenants in Housing (Nashville: Fisk University Press, 1947), 32–33. Douglas S. Massey and Nancy A. Denton point out that the National Association of Real Estate Brokers adopted an article in its 1924 code of ethics stating that "a Realtor should never be instrumental in introducing into a neighborhood . . . members of any race or nationality . . . whose presence will clearly be detrimental to property values in that neighborhood" (citing Rose Helper, Racial Policies and Practices of Real Estate Brokers , 201); they also note that the Fair Housing Authority advocated the use of race-restrictive covenants until 1950 (citing Kenneth T. Jackson, Crabgrass Frontier: the Suburbanization of the United States , 208); American Apartheid: Segregation and the Making of the Under Class (Cambridge, Mass.: Harvard University Press, 1993), 37, 54.· #62.
See Massey and Denton, American Apartheid.· #63.
Michael Froomkin points to the Clipper chip regulations as another example. By using the standards-setting process for government purchases, the federal government could try to achieve a standard for encryption without adhering to the Administrative Procedure Act. "A stroke of bureaucratic genius lay at the heart of the Clipper strategy. Congress had not, and to this date has not, given the executive branch the power to control the private use of encryption. Congress has not even given the executive the power to set up an escrow system for keys. In the absence of any formal authority to prevent the adoption of unescrowed cryptography, Clipper's proponents hit upon the idea of using the government's power as a major consumer of cryptographic products to rig the market. If the government could not prevent the public from using nonconforming products, perhaps it could set the standard by purchasing and deploying large numbers of escrowed products"; "It Came from Planet Clipper," 15, 24, 1–33.· #64.
See The Industry Standard, available at http://www.lessig.org/content/standard/0,1902,4165,00.html (cached: http://www.webcitation.org/5IwtxT699).· #65.
See "Legal Eagle" (letter to the editor), The Industry Standard, April 26, 1999 (emphasis added).· #1.
Castronova, Synthetic Worlds, 207.· #2.
Declan McCullagh, "It's Time for the Carnivore to Spin," Wired News, July 7, 2000, available at http://www.wirednews.com/news/politics/0,1283,37590,00.html (cached: http://www.webcitation.org/5Iwu1qK22).· #3.
Ann Harrison, "Government Error Exposes Carnivore Investigators; ACLU Blasts Team for Close Ties to Administration," Computerworld, October 5, 2000, available at http://www.computerworld.com/governmenttopics/government/policy/story/0,10801,51991,00.html (cached: http://www.webcitation.org/5Iwu4DXO9). This concern was strongly criticized. See Center for Democracy and Technology, "Cryptography," available at http://www.cdt.org/crypto/ (cached: http://www.webcitation.org/5Iwu6i0DW).· #4.
The Mitre Corporation did examine a related question for the military. See Carolyn A. Kenwood, A Business Case Study of Open Source Software (Mitre Corporation: 2001).· #5.
See Bush v. Gore, 531 U.S. 98, 126 (2000) (Stevens, J., dissenting).· #6.
Di Franco et al., "Small Vote Manipulations Can Swing Elections," Communications ofthe ACM, Volume 47, Number 10 (2004), 43–45, available at http://portal.acm.org/citation.cfm?id=1022621 (cached: http://www.webcitation.org/5J6iADqIe).· #7.
For an extraordinarily troubling account that raises much more than suspicion, see Robert F. Kennedy, Jr., "Was the 2004 Election Stolen?," Rolling Stone (June 2006).· #8.
David E. Ross, PGP: Backdoors and Key Escrow , 2003, available at http://www.rossde.com/PGP/pgp_backdoor.html (cached: http://www.webcitation.org/5J6iChNNs).· #9.
Craig Hunt, TCP/IP: Network Administration (Sebastopol, Calif.: O'Reilly and Associ ates, 1997), 1–22, 6, 8; Loshin, TCP/IP: Clearly Explained, 13–17.· #10.
There is no standard reference model for the TCP/IP layers. Hunt refers to the four lay ers as the "network access," "internet," "host-to-host transport," and "application" layers; TCP/IP: Network Administration, 9. Loshin uses the terminology I follow in the text; TCP/IP: Clearly Explained, 13–17. Despite the different moniker, the functions performed in each of these layers are consistent. As with any protocol stack model, data are "passed down the stack when it is being sent to the network, and up the stack when it is being received from the network." Each layer "has its own independent data structures," with one layer "unaware of the data structures used by" other layers; Hunt, TCP/IP: Network Administration, 9.· #11.
Hunt, TCP/IP: Network Administration, 9; Loshin, TCP/IP: Clearly Explained, 13–17.· #12.
As Hafner and Lyon explain: "The general view was that any protocol was a potential building block, and so the best approach was to define simple protocols, each limited in scope, with the expectation that any of them might someday be joined or modified in various unanticipated ways. The protocol design philosophy adopted by the NWG [network working group] broke ground for what came to be widely accepted as the `layered' approach to protocols"; Where Wizards Stay Up Late, 147.· #13.
The fights over encryption at the link level, for example, are fights over the TCP/IP protocols. Some within the network industry have proposed that encryption be done at the gateways, with a method for dumping plain text at the gateways if there were proper legal authority — a kind of "private doorbell" for resolving the encryption controversy; see Elizabeth Kaufman and Roszel Thomsen II, "The Export of Certain Networking Encryption Products Under ELAs," available at http://www.cisco.com/web/about/gov/downloads/779/govtaffs/archive/CiscoClearZone.doc (cached: http://www.webcitation.org/5J6iFdx8M). This has been opposed by the Internet Architectural Board (IAB) as inconsistent with the "end-to-end" architecture of the Internet; see IAB statement on "private doorbell" encryption, available at http://www.iab.org/documents/docs/121898.html (cached: http://www.webcitation.org/5J6iHv95Y). Since Code v1_,_ there has been an explosion of excellent work extending "layer theory." Perhaps the best academic work in this has been Lawrence B. Solum and Minn Chung, "The Layers Principle: Internet Architecture and the Law," University of San Diego Public Law Research Paper No. 55, available at http://ssrn.com/abstract=416263 (cached: http://www.webcitation.org/5J6iKFgUO). Solum and Chung have used the idea of Internet layers to guide regulatory policy, locating appropriate and inappropriate targets for regulatory intervention. This is an example of some of the best work integrating technology and legal policy, drawing interesting and important implications from the particular, often counter intuitive, interaction between the two. I introduce "layers" in my own work in The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), 23–25. See also Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven: Yale University Press, 2006), 391–97. For other very useful work extending this analysis, see Craig McTaggart, "A Layered Approach to Internet Legal Analysis," McGill Law Journal 48 (2003): 571; Thomas A. Lane, "Of Hammers and Saws: The Toolbox of Federalism and Sources of Law for the Web," New Mexico Law Review 33 (2003): 115; Jane Bailey, "Of Mediums and Metaphors: How a Layered Methodology Might Contribute to Constitutional Analysis of Internet Content Regulation," Manitoba Law Journal 30 (2004): 197.· #14.
See Hafner and Lyon, Where Wizards Stay up Late, 174.· #15.
A 1994 HTML manual lists twenty-nine different browsers; see Larry Aronson, HTMLManual of Style (Emeryville, Cal.: Ziff-Davis Press, 1994), 124–26.· #16.
Source code is the code that programmers write. It sometimes reads like a natural lan guage, but it is obviously not. A program is (ordinarily) written in source code, but to be run it must be converted into a language the computer can process. This is what a "compiler" does. Some source code is converted on the fly — BASIC, for example, is usually interpreted, meaning the computer compiles the source code as it is run. "Object code" is machine-readable. It is an undifferentiated string of 0s and 1s that instructs the machines about the tasks it is to perform.· #17.
Hypertext is text that is linked to another location in the same document or in another document located either on the Net or on the same computer.· #18.
T. Berners-Lee and R. Cailliau, WorldWideWeb: Proposal for a HyperText Project, 1990, available at http://www.w3.org/Proposal (cached: http://www.webcitation.org/5J6iMja8s).· #19.
Of course, not always. When commercial production of computers began, software was often a free addition to the computer. Its commercial development as proprietary came only later; see Ira V. Heffan, "Copyleft: Licensing Collaborative Works in the Digital Age," Stanford Law Review 49 (1997): 1487, 1492–93.· #20.
At the time Linux was developed, the dominant thinking among computer scientists was against a monolithic operating system operating out of a single kernel and in favor of a "microkernel"-based system. MINIX, a microkernel system, was the primary competitor at the time. Torvalds consciously rejected this "modern" thinking and adopted the "traditional" model for Linux; see "The Tanenbaum-Torvalds Debate," in Open Sources: Voices from the Open Source Revolution, edited by Chris DiBona et al. (Sebastopol, Cal.: O'Reilly and Associates, 1999), 221–51.· #21.
See the lists, "Ports of Linux" and Linux Online, "Hardware Port Projects" available at http://www.cyut.edu.tw/~ckhung/l/linux_ports.html (cached: http://www.webcitation.org/5J6iPa5rx) and http://www.linux.org/projects/ports.html (cached: http://www.webcitation.org/5J6iSED4b).· #22.
Technically, it does not sit in the public domain. Code from these open source projects is copyrighted and licensed. GNU/Linux is licensed under the GNU GPL, which limits the possible use you can make of Linux; essentially, you cannot take the public part and close it, and you cannot integrate the open part with the closed; see Bruce Perens, "The Open Source Definition," in DiBona et al., Open Sources, 181–82. But for purposes of future open source development, the code sits in the commons. On the idea and values of the commons, see, for example, Michael A. Heller, "The Tragedy of the Anticommons: Property in the Transition from Marx to Markets," Harvard Law Review 111 (1998): 621; Stephen M. McJohn, "Fair Use and Privatization in Copyright," San Diego Law Review 35 (1998): 61; Mark A. Lemley, "The Economics of Improvement in Intellectual Property Law," Texas Law Review 75 (1997): 989; Mark A. Lemley, "Romantic Authorship and the Rhetoric of Property," Texas Law Review 75 (1997): 873; Jessica Litman, "The Public Domain," Emory Law Journal 39 (1990): 965; Carol M. Rose, "The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems," Minnesota Law Review 83 (1998): 129.· #23.
Daniel Benoliel, "Technological Standards, Inc.: Rethinking Cyberspace Regulatory Epistemology," California Law Review 92 (2004): 1069, 1114.· #24.
Peter Harter, "The Legal and Policy Framework for Global Electronic Commerce," comments at the Berkeley Center for Law and Technology Conference, March 5–6, 1999.· #25.
For an argument to the opposite conclusion, see Stephen M. McJohn_,_ "The Paradoxes of Free Software," George Mason Law Review 9 (2000): 25, 64–65. Mathias Strasser extends the analysis here in a useful way in "A New Paradigm in Intellectual Property Law? The Case Against Open Sources," Stanford Technology Law Journal 2001 (2001): 4.· #26.
I am grateful to Hal Abelson for this point.· #1.
For a related practice that focuses upon principles in context rather than application, see Andrew L. Shapiro, "The `Principles in Context' Approach to Internet Policymaking," Columbia Science and Technology Law Review 1 (2000): 2.· #1.
Justice Holmes himself called the wiretapping a "dirty business"; Olmstead v. UnitedStates, 277 US 438, 470 (1928) (Justice Oliver Wendell Holmes Jr. dissenting).· #2.
Ibid., 457 (Chief Justice William H. Taft: the obtaining of evidence by wiretaps inserted along telephone wires was done without trespass and thus did not violate the Fourth Amendment).· #3.
Ibid., 471 (Justice Louis D. Brandeis dissenting; Justices Holmes, Stone, and Butler also filed dissents).· #4.
There is an extensive debate about the original meaning of the Fourth Amendment and how it should be applied today. For the two camps, see Akhil Reed Amar, "Fourth Amendment First Principles," Harvard Law Review 107 (1994): 757; Tracey Maclin, "The Complexity of the Fourth Amendment: A Historical Review," Boston University Law Review 77 (1997): 925 (critiquing Amar's argument).· #5.
See California v. Acevedo, 500 US 565, 582 (1991) (Justice Antonin Scalia concurring: describing warrant requirement as "riddled with exceptions").· #6.
See Bradford P. Wilson, "The Fourth Amendment as More Than a Form of Words: The View from the Founding," in The Bill of Rights: Original Meaning and Current Understanding, edited by Eugene W. Hickok Jr. (Charlottesville: University Press of Virginia, 1991), 151, 156–57. As many have pointed out, there were not really any "police" at that time in the sense that we understand the term today. The modern police force is a creation of the nineteenth century; see Carol S. Steiker, "Second Thoughts About First Principles," Harvard Law Review 107 (1994): 820, 830–34; William J. Stuntz, "The Substantive Origins of Criminal Procedure," Yale Law Journal 105 (1995).· #7.
See Amar, "Fourth Amendment First Principles," 767; Stuntz, "The Substantive Origins of Criminal Procedure," 400.· #8.
Indeed, as Professor William Stuntz argues quite effectively, one danger with warrants in general is that judges become lax and yet the product of their work (the warrant) receives great deference in subsequent proceedings; "Warrants and Fourth Amendment Remedies," Virginia Law Review 77 (1991): 881, 893.· #9.
See Stuntz, "The Substantive Origins of Criminal Procedure," 396–406.· #10.
See United States v. Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis senting: "Closed-minded they were — as every age is . . . with regard to matters it cannot guess, because it simply does not consider them debatable").· #11.
See Lawrence Lessig, "Fidelity in Translation," Texas Law Review 71 (1993): 1165, 1230.· #12.
Olmstead v. United States, 277 US 438, 470 (1928), 464–65.· #13.
Ibid., brief for the Pacific Telephone and Telegraph Company (nos. 493, 532, 533).· #14.
Ibid., 473 (Justice Louis Brandeis dissenting).· #15.
"Translation" is not Brandeis's term, though it is a term of the courts. The idea is best captured by Justice Robert H. Jackson in West Virginia State Board of Education v. Barnette, 319 US 624, 639–40 (1943): "Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed."· #16.
See Robert Post, Constitutional Domains: Democracy, Community, Management (Cam bridge, Mass.: Harvard University Press, 1995), 60–64.· #17.
See Lessig, "Fidelity in Translation," 1214–68; Lawrence Lessig, "Translating Federal ism: United States v Lopez," Supreme Court Review 1995 (1995): 125, 146. For a more sophisticated analysis of how changing technologies in the context of telecommunications is affecting legislation and judicial doctrine, see Monroe E. Price and John F. Duffy, "Technological Change and Doctrinal Persistence: Telecommunications Reform in Congress and the Court," Columbia Law Review 97 (1997): 976.· #18.
So, for example, the translations to support federalism are translations on the right, while the translations to support criminal rights are translations on the left.· #19.
Katz v. United States, 389 US 347, 353 (1967).· #20.
Laurence H. Tribe, "The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier," address at the First Conference on Computers, Freedom, and Privacy, March 26, 1991, reprinted in The Humanist (September-October 1991): 15, 20–21.· #21.
Katz v. United States, 389 US 347, 351 (1967).· #22.
As the history of the Fourth Amendment's protection of privacy since Katz will attest, the technique used by Stewart was in the end quite ineffectual. When tied to property notions, no doubt the reach of the Fourth Amendment was narrow. But at least its reach went as far as the reach of property. Because "property" is a body of law independent of privacy questions, it was resilient to the pressures that privacy placed on it. But once the Court adopted the "reasonable expectation of privacy" test, it could later restrict these "reasonable expectations" in the Fourth Amendment context, with little consequence outside that context. The result has been an ever-decreasing scope for privacy's protection.· #23.
See Lessig, "Translating Federalism," 206–11.· #24.
Tribe, "The Constitution in Cyberspace," 15.· #25.
See Lawrence Lessig, "Reading the Constitution in Cyberspace," Emory Law Journal 45 (1996): 869, 872.· #26.
This example is drawn from Maryland v. Craig, 497 US 836 (1990).· #27.
See Tribe, "The Constitution in Cyberspace," 15.· #28.
"A latent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous. The usual instance of a latent ambiguity is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally"; Williston on Contracts, 3d ed., edited by Walter H. E. Jaeger (Mount Kisco, N.Y.: Baker, Voorhis, 1957), 627, 898.· #29.
See United States v. Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis senting).· #30.
Related work has been done under the moniker the "New Judicial Minimalism." See Christopher J. Peters and Neal Devins, "Alexander Bickel and the New Judicial Minimalism," in The Judiciary and American Democracy, Kenneth D. Ward and Cecilia R. Castillo, eds. (Albany: State University of New York Press, 2005).· #31.
See Bernard Williams, "The Relations of Philosophy to the Professions and Public Life," unpublished manuscript.· #32.
For a strong argument against a strong role for judicial review in matters such as this, see Orin Kerr, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," Michigan Law Review 102 (March 2004): 801.· #1.
Harold Smith Reeves, "Property in Cyberspace," University of Chicago Law Review 63 (1996): 761.· #2.
This in the end was not his conclusion. He concluded instead, not that boundaries should not be protected in cyberspace, but rather that the unconventional nature of cyberspace requires that boundaries be set along nontraditional context-specific lines. This conclusion, Reeves asserts, requires the law to understand both the environment of cyberspace and the interests of those who transact in that space; see ibid., 799.· #3.
Cf. Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," New York University Law Review 74 (1999): 354.· #4.
Maureen O'Rourke has extended the idea of the technological fences that cyberspace might provide, describing techniques that websites, for example, might use to control, or block, links from one site to another; see "Fencing Cyberspace: Drawing Borders in a Virtual World," Minnesota Law Review 82 (1998): 610, 645–47. See, e.g., Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (Cal. Ct. App. 1996) (Trespass to chattel claim involving defendant's children hacking plaintiff 's confidential code to make long distance phone calls); Intel v. Hamidi, 30 Cal. 4th 1342 (Cal. 2003) (Trespass to chattels claim involving Hamidi, a former employee, using Intel's employee list-serve to send e-mails to employees); eBay v. Bidder's Edge, 100 F. Supp. 2d 1058 (D. Cal. 2000) (eBay sought to prevent Bidder's Edge, an Internet-based auction aggregation site, from use of an automated query function without eBay's authorization); Register.com v. Verio, 356 F. 3d 393 (2d. Cir. 2004) (Register.com sought to prevent Verio from using its trademark or online databases to solicit business from lists provided on the Register.com website); America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 20645 (D. Va. 1998) (America Online alleged that IMS was sending unsolicited bulk e-mail advertisements to its members in violation of the Lanham Act, 15 U.S.C.S 1125).· #5.
See, for example, Stephen Breyer, "The Uneasy Case for Copyright: A Study of Copy right in Books, Photocopies, and Computer Programs," Harvard Law Review 84 (1970): 281.· #6.
There is a ferocious debate about whether these separate forms of regulation — copy right, patent, and trademark — should be referred to together as "Intellectual Property." I myself have gone both ways on this question, but currently believe it is harmful not to refer to these distinct bodies of law as "intellectual property." Though of course these domains are different, calling them by the same name doesn't necessarily confuse (no one is confused about the difference between a tiger and a kitty cat, even if they're both called "cats"). More importantly, by not calling them by the same name, we lose a chance to point out inconsistencies in the way these different forms of property are treated. For example, both patent and trademark benefit from significant formalities built into each system; when you notice those formalities are absent from "copyright," one is led to wonder why one form of "intellectual property" is free of formalities, while the other two are not.· #7.
Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stan ford: Stanford University Press, 2003) 64, 103: "Little did I realize at the time that this was all going to have its effect on television and motion pictures and VCRs, and the whole gamut of things which are affected by copyright law, which of course weren't even thought of when we made our move. We were dealing with a fairly simple operation — Xerox. Now it's become horribly complicated."· #8.
"Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights," U.S. Department of Commerce, 1995; hereafter "White Paper." George Smirnoff III ("Copyright on the Internet: A Critique of the White Paper's Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, Online Service Provider Liability," Cleveland State Law Review 44 : 197) criticizes the White Paper's lack of completeness, inconsistencies, and apparent lack of adequate consideration; see also Pamela Samuelson, "The Copyright Grab," Wired (January 1996): 134, 136. By contrast, Gary W. Glisson ("A Practitioner's Defense of the White Paper," Oregon Law Review 75 : 277) argues that the White Paper is neither a misleading summary of the state of intellectual property law nor a proposal for dramatic changes. For an extensive analysis of the copyright issues raised by cyberspace, see Trotter Hardy, "Project Looking Forward: Sketching the Future of Copyright in a Networked World," U.S. Copyright Office final report (1998), available at http://www.copyright.gov/reports/thardy.pdf (cached: http://www.webcitation.org/5J6iVKSro).· #9.
For a summary of the changes called for by the White Paper, see Bruce Lehman, address before the Inaugural Engelberg Conference on Culture and Economics of Participation in an International Intellectual Property Regime, reprinted in New York University Journal of International Law and Politics 29 (1996–97): 211, 213–15; "White Paper," 17.· #10.
The most important such threat is the anticircumvention provision of the Digital Millennium Copyright Act, which makes it a crime (subject to complex exceptions) to manufacture code to circumvent a copyright protection mechanism, even if the use of the underlying material itself would be a fair use; see Pub.L. 105–304, 112 Stat 2877 (1998) (prohibiting the manufacture, importation, or distribution of "devices, products, components" that "defeat technological methods of preventing unauthorized use").· #11.
See John Perry Barlow, "The Economy of Ideas," Wired (March 1994), 129; see also John Perry Barlow, "Papers and Comments of a Symposium on Fundamental Rights on the Information Superhighway," Annual Survey of American Law 1994 (1994): 355, 358. Barlow argues that "it is not so easy to own that which has never had any physical dimension whatsoever," unlike traditional forms of property. "We have tended to think," he adds, "that copyright worked well because it was physically difficult to transport intellectual properties without first manifesting them in some physical form. And it is no longer necessary to do that."· #12.
See Mark Stefik, "Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing," Berkeley Technology Law Journal 12 (1997): 137; Mark Stefik, "Trusted Systems," Scientific American (March 1997): 78; Mark Stefik, "Letting Loose the Light: Igniting Commerce in Electronic Publication," in Stefik, Internet Dreams, 220–22, 226–28.· #13.
See Joel R. Reidenberg, "Governing Networks and Rule-Making in Cyberspace," EmoryLaw Journal 45 (1996): 911.· #14.
See Mark Stefik, "Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing," Berkeley Technology Law Journal 12 (1997).· #15.
In "Shifting the Possible" (142–44), Stefik discusses how trusted printers combine four elements — print rights, encrypted online distribution, automatic billing for copies, and digital watermarks — in order to monitor and control the copies they make.· #16.
Stefik, The Internet Edge , 91.· #18.
Sony v. Universal Studios, Inc., 464 U.S. 417, 432 (1984).· #19.
See David Hackett Fischer, Albion's Seed: Four British Folkways in America (New York: Oxford University Press, 1989), 765.· #20.
See American Legal Realism, edited by William W. Fisher III et al. (New York: Oxford University Press, 1993), 98–129; John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995). For a nice modern example of the same analysis, see Keith Aoki, "(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship," Stanford Law Review 48 (1996): 1293.· #21.
See Fried, The Progressive Assault on Laissez-Faire, 1–28; see also Joel P. Trachtman ("The International Economic Law Revolution," University of Pennsylvania Journal of International Economic Law 17 : 33, 34), who notes that many realists and critical legal theorists have asserted that "private law" is an oxymoron.· #22.
Judges have also made this argument; see Lochner v. New York, 198 US 45, 74 (1905) (Justice Oliver Wendell Holmes Jr. dissenting).· #23.
This is the epistemological limitation discussed in much of Friedrich A. von Hayek's work; see, for example, Law, Legislation, and Liberty, vol. 2 (Chicago: University of Chicago Press, 1978).· #24.
Boyle, Shamans, Software, and Spleens, 174.· #25.
I am hiding a great deal of philosophy in this simplified utilitarian account, but for a powerful economic grounding of the point, see Harold Demsetz, "Toward a Theory of Property Rights," American Economics Review 57 (1967): 347.· #26.
For a wonderfully clear introduction to this point, as well as a complete analysis of the law, see Robert P. Merges et al., Intellectual Property in the New Technological Age (New York: Aspen Law and Business, 1997), ch. 1.· #27.
Thomas Jefferson, letter to Isaac Mcpherson, August 13, 1813, reprinted in Writings ofThomas Jefferson, 1790–1826, vol. 6, edited by H. A. Washington (1854), 180–81, quoted in Graham v. John Deere Company, 383 US 1, 8–9 n.2 (1966).· #28.
For the classic discussion, see Kenneth J. Arrow, "Economic Welfare and the Allocation of Resources for Invention," in The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton, N.J.: Princeton University Press, 1962), 609, 616–17.· #29.
For a powerfully compelling problematization of the economic perspective in this context, see Boyle, "Intellectual Property Policy Online," 35–46. Boyle's work evinces the indeterminacy that economics ought to profess about whether increasing property rights over information will also increase the production of information.· #30.
Some insist on calling this "property"; see Frank H. Easterbrook, "Intellectual Property Is Still Property," Harvard Journal of Law and Public Policy 13 (1990): 108.· #31.
This is the message of Justice Stephen Breyer's work on copyright, for example, "The Uneasy Case for Copyright."· #32.
See Eldred v. Ashcroft, 537 U.S. 186 (2003).· #33.
For an extensive and balanced analysis, see William M. Landes and Richard A. Posner, "An Economic Analysis of Copyright Law," Journal of Legal Studies 18 (1989): 325, 325–27, 344–46. These authors note that because ideas are a public good — that is, an infinite number of people can use an idea without using it up — ideas are readily appropriated from the creator by other people. Hence, copyright protection attempts to balance efficiently the benefits of creating new works with the losses from limiting access and the costs of administering copyright protection; copyright protection seeks to promote the public benefit of advancing knowledge and learning by means of an incentive system. The economic rewards of the marketplace are offered to authors in order to stimulate them to produce and disseminate new works (326). See also Richard Posner, Law and Literature (Cambridge, Mass.: Harvard University Press, 1998), 389–405; William M. Landes and Richard Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Harvard University Press, 2003), 8–9.· #34.
These limits come from both the limits in the copyright clause, which sets its purposes out quite clearly, and the First Amendment; see, for example, Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 346 (1991).· #35.
The "first sale" doctrine was developed under 27 of the former Copyright Act (17 USC ) and has since been adopted under 109(a) of the present Copyright Act; see United States v. Goss, 803 F2d 638 (11th Cir 1989) (discussing both versions of the Copyright Act).· #36.
Europeans like to say that "moral rights" have been part of their system since the beginning of time, but as Professor Jane C. Ginsburg has shown with respect to France, they are actually a nineteenth-century creation; see "A Tale of Two Copyrights: Literary Property in Revolutionary France and America," Tulane Law Review 64 (1990): 991.· #37.
Daniel Benoliel, "Technological Standards, Inc.: Rethinking Cyberspace Regulative Epistemology," 92 California Law Review 1069, 1114 (2004).· #38.
See Universal Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).· #39.
Stefik, The Internet Edge, 99–100.· #40.
See, e.g., People v. Network Associates, Inc., 195 Misc. 2d 384 (N.Y. Misc. 2003).· #41.
See William W. Fisher III, "Compulsory Terms in Internet-Related Contracts," Chicago-Kent Law Review 73 (1998). Fisher catalogs public policy restrictions on freedom of contract, which he characterizes as "ubiquitous."· #42.
Stefik, The Internet Edge, 91–7.· #43.
See Lessig, Free Culture: The Nature and Future of Creativity , xiv–xvi.· #44.
Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University ofColorado Law Review 71 (2000): 1203, 1254.· #45.
See Campbell v. Acuff-Rose Publishing, 510 U.S. 569 (1994). Gordon ("Fair Use as Mar ket Failure") argues that the courts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J. Gordon, "On Owning Information: Intellectual Property and Restitutionary Impulse," Virginia Law Review 78 (1992): 149. In "Reality as Artifact: From Feist to Fair Use" (Law and Contemporary Problems 55 5PG : 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts, which need to be widely available for public dissemination. Gordon's "Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship" (University of Chicago Law Review 57 : 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, "An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory," Stanford Law Review 41 (1989): 1343.· #46.
See Gibbons v. Ogden, 22 US 1 (1824) (striking down New York's grant of a monopoly of steamboat navigation on the Hudson River as inconsistent with the federal Coasting Act of 1793); McCulloch v. Maryland, 17 US 316 (1819) (pronouncing that Congress has the power to do what is "necessary and proper" to achieve a legitimate end, like the regulation of interstate commerce).· #47.
See Bernard C. Gavit, The Commerce Clause of the United States Constitution (Bloom ington, Ind.: Principia Press, 1932), 84.· #48.
See Pensacola Telegraph Company v. Western Union Telegraph Company, 96 US 1, 9 (1877).· #49.
As one commentator put it near the turn of the century: "If the power of Congress has a wider incidence in 1918 than it could have had in 1789, this is merely because production is more dependent now than then on extra-state markets. No state liveth to itself alone to any such extent as was true a century ago. What is changing is not our system of government, but our economic organization"; Thomas Reed Powell, "The Child Labor Law, the Tenth Amendment, and the Commerce Clause," Southern Law Quarterly 3 (1918): 175, 200–201.· #50.
See Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vintage, 1990), 158–70, on the idea that the framers' design pushed states to legislate in a broad domain and keep the local government active.· #51.
See Maryland v. Wirtz, 392 US 183, 201 (1968) (Justice William O. Douglas dissenting: The majority's bringing of employees of state-owned enterprises within the reach of the commerce clause was "such a serious invasion of state sovereignty protected by the Tenth Amendment that it . . . [was] not consistent with our constitutional federalism"); State Board of Insurance v. Todd Shipyards Corporation, 370 US 451, 456 (1962) (holding that "the power of Congress to grant protection to interstate commerce against state regulation or taxation or to withhold it is so complete that its ideas of policy should prevail") (citations omitted).· #52.
See Michael G. Frey, "Unfairly Applying the Fair Use Doctrine: Princeton University Press v Michigan Document Services, 99 F3d 1381 (6th Cir 1996)," University of Cincinnati Law Review 66 (1998): 959, 1001; Frey asserts that "copyright protection exists primarily for the benefit of the public, not the benefit of individual authors. Copyright law does give authors a considerable benefit in terms of the monopolistic right to control their creations, but that right exists only to ensure the creation of new works. The fair use doctrine is an important safety valve that ensures that the benefit to individual authors does not outweigh the benefit to the public"; Marlin H. Smith ("The Limits of Copyright: Property, Parody, and the Public Domain," Duke Law Journal 42 : 1233, 1272) asserts that "copyright law is better understood as that of a gatekeeper, controlling access to copyrighted works but guaranteeing, via fair use, some measure of availability to the public."· #53.
Stefik, "Letting Loose the Light," 244. For an excellent use of the general analysis of Code to argue that the specific analysis of this chapter is mistaken, see John Tehranian, "All Rights Reserved? Reassessing Copyright and Patent Enforcement in the Digital Age," University of Cincinnati Law Review 72 (2003): 45.· #54.
Efficient here both in the sense of cheap to track and in the sense of cheap to then dis criminate in pricing; William W. Fisher III, "Property and Contract on the Internet," ChicagoKent Law Review 74 (1998).· #55.
Julie E. Cohen, "A Right to Read Anonymously: A Closer Look at `Copyright Man agement' in Cyberspace," Connecticut Law Review 28 (1996): Reading anonymously is "so intimately connected with speech and freedom of thought that the First Amendment should be understood to guarantee such a right" (981, 982). Cohen has extended her analysis in the context of technology that didn't gather private information. See Julie E. Cohen, "DRM and Privacy," Berkeley Technology Law Journal 18 (2003): 575. See also Helen Nissenbaum, "Securing Trust Online: Wisdom or Oxymoron," Boston University Law Review 81 (2001): 635 (describing the dynamic of trust emerging systems will evoke). For related, and powerful work, see Sonia K. Katyal, "The New Surveillance," Case Western Reserve Law Review 54 (2003): 297.· #56.
"The freedom to read anonymously is just as much a part of our tradition, and the choice of reading materials just as expressive of identity, as the decision to use or withhold one's name" (Cohen, "A Right to Read Anonymously," 1012).· #57.
See Olmstead v. United States 277 US 438, 474 (1928) (Justice Louis Brandeis dissent ing: "Can it be that the Constitution affords no protection against such invasions of individual security?").· #58.
See Jessica Litman, "The Exclusive Right to Read," Cardozo Arts and Entertainment LawJournal 13 (1994): 29.· #59.
See Dan Hunter and F. Gregory Lastowka, "Amateur-to-Amateur," William and MaryLaw Review 46 (December 2004): 951, 1026–27.· #60.
Lasica, Darknet: Hollywood's War Against the Digital Generation 18. ("The director of MIT's Comparative Media Studies Program and author of nine books on popular culture, [Henry] Jenkins says that from an early age, children reimagine what you can do with characters and settings from movies and TV. They play video games that permit control over a character within limited boundaries. Newer games allow an even broader range of interactivity and behaviors. When they get online, they can share stories, and children as young as seven are posting to fan fiction sites with simple but interesting stories about Harry Potter and Pokemon.")· #61.
Siva Vaidhyanathan, "Remote Control: The Rise of Electronic Cultural Policy," Annalsof the American Academy of Political and Social Science 597, 1 (January 1, 2005): 126.· #62.
Lasica, Darknet: Hollywood's War Against the Digital Generation , 78, quoting Ernest Miller.· #63.
From DJ Danger Mouse Web 2.0 Conference presentation "Music Is a Platform," Octo ber 6, 2004, quoted in Lasica, Darknet: Hollywood's War Against the Digital Generation, 211.· #64.
See, for example, anime music videos, available at http://www.animemusicvideos.org/home/home.php (cached: http://www.webcitation.org/5J6iY6CBz).· #65.
Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwell's 1984; see Orwell's Revenge: The 1984 Palimpsest (New York: Maxwell Macmillan International, 1994). But this is a weak basis on which to build liberty, especially as the cost of networked control drops. Frances Cairncross (The Death of Distance: How the Communications Revolution Will Change Our Lives [Boston: Harvard Business School Press, 1997], 194–95) effectively challenges the idea as well.· #66.
Lessig, The Future of Ideas: The Fate of the Commons in a Connected World , 19–23.· #67.
A founding work is David Lange, "Recognizing the Public Domain," Law and Contem-porary Problems 44 (1981): 147. There are many important foundations, however, to this argument. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967). Gordon ("Fair Use as Market Failure") argues that the courts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J. Gordon, "On Owning Information: Intellectual Property and Restitutionary Impulse," Virginia Law Review 78 (1992): 149. In "Reality as Artifact: From Feist to Fair Use" (Law and Contemporary Problems 55 5PG : 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts, which need to be widely available for public dissemination. Gordon's "Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship" (University of Chicago Law Review 57 : 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, "An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory," Stanford Law Review 41 (1989): 1343.· #68.
In the first edition to this book, in addition to Boyle, I acknowledged broadly the work that had informed my understanding, including Keith Aoki, "Foreword to Innovation and the Information Environment: Interrogating the Entrepreneur," Oregon Law Review 75 (1996): 1; in "(Intellectual) Property and Sovereignty," Aoki discusses the challenges to the traditional concept of property that arise from the growth of digital information technology; in "Authors, Inventors, and Trademark Owners: Private Intellectual Property and the Public Domain" (Columbia-VLA Journal of Law and the Arts 18 : 1), he observes the shifting boundaries in intellectual property law between "public" and "private" realms of information and argues that trends to increase the number of exclusive rights for authors are converting the public domain into private intellectual property and constraining other types of socially valuable uses of expressive works that do not fit the "authorship" model underlying American copyright traditions; he also argues that recent expansion of trademark law has allowed trademark owners to obtain property rights in their trademarks that do not further the Lanham Act's goal of preventing consumer confusion. Benkler, "Free as the Air to Common Use"; Yochai Benkler, "Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment," Harvard Journal of Law and Technology 11 (1998): 287; Julie E. Cohen, "Copyright and the Jurisprudence of Self-Help," Berkeley Technology Law Journal 13 (1998): 1089; Julie E. Cohen, "Lochner in Cyberspace: The New Economic Orthodoxy of `Rights Management,'" Michigan Law Review 97 (1998): 462; Julie E. Cohen, "Some Reflections on Copyright Management Systems and Laws Designed to Protect Them," Berkeley Technology Law Journal 12 (1997): 161, 181–82; Julie E. Cohen, "Reverse-Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of `Lock-Out' Programs," Southern California Law Review 68 (1995): 1091. Niva Elkin-Koren, "Contracts in Cyberspace: Rights Without Laws," Chicago-Kent Law Review 73 (1998); Niva Elkin-Koren, "Copyright Policy and the Limits of Freedom of Contract," Berkeley Technology Law Journal 12 (1997): 93, 107–10 (criticizing the ProCD decision); Niva Elkin-Koren, "Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace," Cardozo Arts and Entertainment Law Journal 14 (1996): 215; in "Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators" (Cardozo Arts and Entertainment Law Journal 13 : 345, 390–99), Elkin-Koren analyzes the problems created by applying copyright law in a digitized environment. In "Goodbye to All That — A Reluctant (and Perhaps Premature) Adieu to a Constitutionally Grounded Discourse of Public Interest in Copyright Law" (Vanderbilt Journal of Transnational Law 29 : 595), Peter A. Jaszi advocates the development of new, policygrounded arguments and constitutionally based reasoning to battle expansionist legislative and judicial tendencies in copyright to diminish public access to the "intellectual commons"; see also Peter A. Jaszi, "On the Author Effect: Contemporary Copyright and Collective Creativity," Cardozo Arts and Entertainment Law Journal 10 (1992): 293, 319–20; Peter A. Jaszi, "Toward a Theory of Copyright: The Metamorphoses of `Authorship,'" Duke Law Journal 1991 (1991): 455. On the misuse of copyright, see Mark A. Lemley, "Beyond Preemption: The Law and Policy of Intellectual Property Licensing," 87 California Law Review, 111 (1999); Mark A. Lemley, "The Economics of Improvement in Intellectual Property Law," Texas Law Review 75 (1997): 989, 1048–68; in "Intellectual Property and Shrink-wrap Licenses" (Southern California Law Review 68 : 1239, 1239), Lemley notes that "software vendors are attempting en masse to `opt out' of intellectual property law by drafting license provisions that compel their customers to adhere to more restrictive provisions than copyright . . . law would require." Jessica Litman ("The Tales That Article 2B Tells," Berkeley Technology Law Journal 13 : 931, 938) characterizes as "dubious" the notion that current law enables publishers to make a transaction into a license by so designating it. In her view, article 2B is "confusing and confused" about copyright and its relationship with that law, and would make new law. She believes that "whatever the outcome" of the debate over whether copyright makes sense in the digital environment (see "Reforming Information Law in Copyright's Image," Dayton Law Review 22 : 587, 590), "copyright doctrine is ill-adapted to accommodate many of the important interests that inform our information policy. First Amendment, privacy, and distributional issues that copyright has treated only glancingly are central to any information policy." See also Jessica Litman, "Revising Copyright Law for the Information Age," Oregon Law Review 75 (1996): 19; and "The Exclusive Right to Read" (Cardozo Arts and Entertainment Law Journal 13 : 29, 48), in which Litman states that "much of the activity on the net takes place on the mistaken assumption that any material on the Internet is free from copyright unless expressly declared to be otherwise." In "Copyright as Myth" (University of Pittsburgh Law Review 53 : 235, 235–37), Litman provides a general overview of the issues of authorship and infringement in copyright law, indicating that debate continues regarding the definition of "authorship" (she defines "author" in the copyright sense of anyone who creates copyrightable works, whether they be books, songs, sculptures, buildings, computer programs, paintings or films [236, n.5]); she also discusses why copyright law is counterintuitive to the authorship process. See also "The Public Domain" (Emory Law Journal 39 : 965, 969), in which Litman recommends a broad definition of the public domain (originality is a keystone of copyright law ). Neil Weinstock Netanel, "Asserting Copyright's Democratic Principles in the Global Arena," Vanderbilt Law Review 51 (1998): 217, 232 n.48, 299 n.322; Neil Netanel, "Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, _Cardozo Arts and Entertainment Law Journal_ 12 (1994): 1, 42–43; in [Copyright and a Democratic Civil Society]: 283, 288, 324–36), Netanel analyzes copyright law and policy in terms of its democracy-enhancing function: "Copyright is in essence a state measure that uses market institutions to enhance the democratic character of society." Margaret Jane Radin and Polk Wagner, "The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace," Chicago-Kent Law Review 73 (1998); Margaret Jane Radin, Reinterpreting Property (Chicago: University of Chicago Press, 1993), 56–63. Pam Samuelson, "Encoding the Law into Digital Libraries," Communications of the ACM 41 (1999): 13, 13–14; Pamela Samuelson, foreword to "Symposium: Intellectual Property and Contract Law for the Information Age," California Law Review 87 (1998): 1; Pamela Samuelson observes in "Embedding Technical Self-Help in Licensed Software" (Communications of the ACM 40 : 13, 16) that "licensors of software or other information . . . will generally invoke selfhelp"; see also the criticism of the European database directive in J. H. Reichman and Pamela Samuelson, "Intellectual Property Rights in Data?," Vanderbilt Law Review 50 (1997): 51, 84–95; Samuelson, "The Copyright Grab," 134; Pamela Samuelson, "Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: The Implications of Sony, Galoob and Sega," Journal of Intellectual Property Law 1 (1993): 49. There is much more that I have learned from in the last seven years. But rather than repli cating the listing style, I would point to Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2000); Vaidhyanathan, Copyrights and Copywrongs; William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford: Stanford University Press, 2004), and Benkler, The Wealth of Networks .· #69.
Boyle, Shamans, Software, and Spleens . For other compelling accounts of the general movement to propertize information, see Debora J. Halbert, Intellectual Property in the Information Age: The Politics of Expanding Ownership Rights (Westport, Conn.: Quorum, 1999). Seth Shulman's Owning the Future (Boston: Houghton Mifflin, 1999) gives the story its appropriate drama. Internet Publishing and Beyond: The Economics of Digital Information and Intellectual Property (Brian Kahin and Hal R. Varian, eds., Cambridge, Mass.: MIT Press, 2000) (Internet publishing and intellectual property). A Handbook of Intellectual Property Management: Protecting, Developing and Exploiting Your IP Assets (Adam Jolly and Jeremy Philpott eds. London: Kogan Page, 2004) (intellectual property and intangible property).· #70.
"We favor a move away from the author vision in two directions; first towards recog nition of a limited number of new protections for cultural heritage, folkloric productions, and biological `know-how.' Second, and in general, we favor an increased recognition and protection of the public domain by means of expansive `fair use protections,' compulsory licensing, and narrower initial coverage of property rights in the first place"; Boyle, Shamans, Software, and Spleens, 169.· #71.
James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?," Duke Law Journal 47 (1997): 87.· #1.
See Jonathan Zittrain, "What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication," Stanford Law Review 52 (2000): 1201.· #2.
Olmstead v. United States, 277 US 438 (1928).· #3.
International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, dis senting).· #4.
Declan MCullagh and Elinor Mills collected the practices of all major search engines in "Verbatim: Search Firms Surveyed on Privacy," CNET NEWS, February 3, 2006, available at http://news.com.com/2100-1025_3-6034626.html (cached: http://www.webcitation.org/5J6iacy4N).· #5.
Stefik, The Internet Edge , 20.· #6.
The government too can snoop on e-mail conversation, but only with a warrant. Ordi narily, notice of the snooping is required. But the government can get a 90 day delay on giving that notice. See US Code Title 18, Section 2705(a)(i).· #7.
See Richard Posner, "Our Domestic Intelligence Crisis," Washington Post, December 21, 2005, available at http://www.washingtonpost.com/wp-dyn/content/discussion/2005/12/20/DI2005122001142.html (cached: http://www.webcitation.org/5J6idb3Ng).· #8.
See, e.g., L. Grossman, "Welcome to the Snooper Bowl," Time , February 12, 2001, avail able at http://www.time.com/time/archive/preview/0,10987,999210,00.html (cached: http://www.webcitation.org/5J6ihTfJH); D. McCullagh, "Call It Super Bowl Face Scan I," Wired, February 2, 2001., available at http://www.wired.com/news/politics/0,1283,41571,00.html (cached: http://www.webcitation.org/5J6ilfWpR).· #9.
C-VIS, "What is Face Recognition Technology?", available at http://www.c-vis.com/htd/frt.html (cached: http://www.webcitation.org/5J6ioUCzl). For an argument that face recognition technology should be seen to violate the Fourth Amendment, see Alexander T. Nguyen, "Here's Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked The Fourth Amendment?" Virginia Journal of Law and Technology 7 (2002): 2.· #10.
See Face Recognition Vendor Test Home Page, available at http://www.frvt.org/ (cached: http://www.webcitation.org/5J6irWXsg).· #11.
Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004), 34–53.· #12.
Lawrence Lessig, "On the Internet and the Benign Invasions of Nineteen Eighty-Four," in On "Nineteen Eighty-Four": Orwell and Our Future, Abbott Gleason, Jack Goldsmith, and Martha C. Nussbaum eds. (Princeton: Princeton University Press, 2005), 212.· #13.
We've learned that the Defense Department is deeply involved in domestic intelligence (intelligence concerning threats to national security that unfold on U.S. soil). The department's National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies, notably the one known as Counterintelligence Field Activity (CIFA), have, as described in Walter Pincus's recent articles in the Washington Post, been conducting domestic intelligence on a large scale. Although the CIFA's formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program. Richard Posner, "Our Domestic Intelligence Crisis," Washington Post, December 21, 2005, at A31.· #14.
Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004), 34–53.· #15.
See American Civil Liberties Union, "The Government is Spying on Americans," avail able at http://www.aclu.org/safefree/spyfiles/index.html (cached: http://www.webcitation.org/5J6lPPpEB).· #16.
See Minnesota v. Dickerson, 508 US 366, 381 (1993) (Justice Antonin Scalia concurring).· #17.
See, for example, William J. Stuntz, "Privacy's Problem and the Law of Criminal Pro cedure," Michigan Law Review 93 (1995): 1016, 1026; in "The Substantive Origins of Criminal Procedure," Stuntz discusses the origins of the Fourth Amendment.· #18.
Stuntz, "Privacy's Problem and the Law of Criminal Procedure," 1026.· #19.
Alien and Sedition Acts of 1798, Act of June 18, 1798, ch. 59, 1 Stat. 566 (repealed 1802), Act of June 25, 1798, ch. 63, 1 Stat. 570 (expired); Act of July 6, 1798, ch. 70, 1 Stat. 577 (expired), Act of July 14, 1798, ch. 77, 1 Stat. 596 (empowering the president to deport anyone he deems dangerous to the country's peace and safety) (expired). The Alien and Sedition Acts were declared unconstitutional in New York Times Co. v. Sullivan, 376 US 254, 276 (1964), though, of course, by then their terms they had expired. See Neal Devins, Constitutional Values (Baltimore: Johns Hopkins University Press, 1996), on overruling (13); and James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956), on the history, enforcement, and impact of the Alien and Sedition Acts.· #20.
Stuntz, "Substantive Origins," 395.· #21.
See Cass Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1996), 35–61.· #22.
Frank Main, "Blogger Buys Presidential Candidate's Call List," Chicago Sun-Times, January 13, 2006, available at http://www.suntimes.com/output/news/cst-nws-cell13.html (cached: http://www.webcitation.org/5J6lTHqRI).· #23.
Peter H. Lewis, "Forget Big Brother," New York Times, March 19, 1998, G1.· #24.
Brin, The Transparent Society , 8–15.· #25.
For a good story that effectively summarizes the state of Web advertising, and for a dis cussion of how DoubleClick operates and the case study of 3M's sale of projectors through the advertising placement company, see Aquantive, available at http://www.aquantive.com (cached: http://www.webcitation.org/5J6lYzNkL) and 24-7 Real Media, available at http://www.247realmedia.com (cached: http://www.webcitation.org/5J6lb94Gu).· #26.
See Federal Trade Commission, "Privacy Online: A Report to Congress," June 1998, n.107, available at http://www.ftc.gov/reports/privacy3/toc.htm (cached: http://www.webcitation.org/5KxTWmw3f).· #27.
See Gandy, The Panoptic Sort, 1–3.· #28.
Johnson, Interface Culture, 192–205. Andrew Shapiro calls this the "feedback effect" but argues that it narrows the range of choices; see Andrew Shapiro, The Control Revolution: How the Internet is Putting Individuals in Charge and Changing the World We Know (New York: PublicAffairs, 1999), 113.· #29.
See, for example, McIntyre v. Ohio Elections Commission, 514 US 334, 341–43 (1995).· #30.
See Janai S. Nelson, "Residential Zoning Regulations and the Perpetuation of Apartheid," UCLA Law Review 43 (1996): 1689, 1693–1704.· #31.
Examples of laws that aim at segregation based on social or economic criteria include: regulations requiring a minimum lot size for housing; single-family ordinances prohibiting "nontraditional" families from living in certain areas; and residential classifications that exclude apartment housing. All such restrictions significantly increase the cost of housing for lowerincome individuals; see ibid., 1699–1700.· #32.
In 1926 the Supreme Court held zoning to be a valid exercise of local governmental power. See Village of Euclid v. Ambler Realty Company, 272 US 365 (1926) (holding that a state has the right to separate incompatible uses). Not until the twentieth century were municipalities given much power to regulate areas of law such as zoning decisions; see Richard Briffault, "Our Localism: Part I — The Structure of Local Government Law," Columbia Law Review 90 (1990): 1, 8–11, 19.· #33.
In 1917 the Supreme Court outlawed racial zoning as a violation of the Fourteenth Amendment; see Buchanan v. Warley, 245 US 60 (1917). However, "nonexclusionary" zoning regulation was used to preserve residential segregation; even though racially neutral and based on economic factors (ostensibly to prevent property devaluation), various laws and regulations have resulted in de facto segregation; see Briffault, "Our Localism," 103–4; Meredith Lee Bryant, "Combating School Resegregation Through Housing: A Need for a Reconceptualization of American Democracy and the Rights It Protects," Harvard BlackLetter Journal 13 (1997): 127, 131–32.· #34.
See Joel Kosman, "Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning," Catholic University Law Review 43 (1993): 59, 77–86, 101–3.· #35.
See Gordon S. Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992), 5–8, 271–86.· #36.
See Lynne G. Zucker, "Production of Trust: Institutional Sources of Economic Struc ture, 1840–1920," Research in Organizational Behavior 8 (1986): 53.· #37.
Price discrimination is the ability to charge different prices for the same good. Airplane tickets are the best example — the same seat can cost hundreds of dollars more for a traveler who cannot stay over Saturday night. See, for example, Joseph Gregory Sidak, "Debunking Predatory Innovation," Columbia Law Review 83 (1983): 1121, 1132–35; see also Easterbrook, "Intellectual Property Is Still Property"; Fisher, "Reconstructing the Fair Use Doctrine," 1659; but see Janusz A. Ordover et al., "Predatory Systems Rivalry: A Reply," Columbia Law Review 83 (1983): 1150, 1158–64.· #38.
Viviana A. Zelizer, The Social Meaning of Money, 2d ed. (Princeton: Princeton Univer sity Press, 1994), 94–95 (footnote omitted).· #39.
Susan Brenner puts the point very powerfully. As she frames the question,"is it reason able to translate the values incorporate in the Fourth Amendment into a context created and sustained by technology?" Susan Brenner,"The Privacy Privilege: Law Enforcement, Technology and the Constitution," Journal of Technology Law and Policy 7 (2002): 123, 162. The question isn't simply whether anonymity has a value — plainly it does. The question instead is "how to translate rights devised to deal with real world conduct into a world where greater degrees of anonymity are possible. . . ." Ibid., 139–40."Because the technology alters the contours of the empirical environment in which the right to remain anonymous is exercised, it creates a tension between this aspect of the right to be let alone and the needs of effective law enforcement." Ibid., 144.· #40.
Shawn C. Helms, "Translating Privacy Values with Technology," Boston UniversityJournal of Science and Technology Law 7 (2001): 288, 314. ("We should approach the translation of anonymity on the Internet through `code' by developing and implementing privacy-enhancing technologies.")· #41.
As William McGeveran writes, Marc Rotenberg, one of privacy's most important advocate, doesn't view P3P as a PET "because Rotenberg defines a PET as technology that inherently reduces transfer of personal data." William McGeveran, "Programmed Privacy Promises: P3P and Web Privacy Law," New York University Law Review 76 (2001): 1813, 1826–27 n.80. I share McGeveran's view that P3P is a PET. If privacy is control over how information about you is released, then a technology that enhances that control is a PET even if it doesn't "reduce[ the] transfer of personal data" — so long as that reduction is consistent with the preferences of the individual. No doubt, a PET could be a bad PET to the extent it fails to enable choice. But it isn't a bad PET because it fails to enable the choice of someone other than the consumer. For a wonderful account of how norms have risen to change data privacy practice, see Steven A. Hetcher, "Norm Proselytizers Create a Privacy Entitlement in Cyberspace," Berkeley Technology Law Journal 16 (2001): 877.· #42.
See U.S. Department of Health, Education and Welfare, Secretary's Advisory Commit tee on Automated Personal Data Systems, Records, Computers, and the Rights of Citizens viii (1973), cited at http://www.epic.org/privacy/consumer/code_fair_info.html (cached: http://www.webcitation.org/5J6lfi8l6).· #43.
Lior Jacob Strahilevitz nicely explores this fundamentally "empirical" question in "A Social Networks Theory of Privacy," University of Chicago Law Review 72 (2005): 919, 921.· #45.
See Guido Calabresi and A. Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Harvard Law Review 85 (1972): 1089, 1105–6. "Property rules involve a collective decision as to who is to be given an initial entitlement but not as to the value of the entitlement. . . . Liability rules involve an additional stage of state intervention: not only are entitlements protected, but their transfer or destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves" (1092).· #46.
See, e.g., Mark A. Lemley, "Private Property," Stanford Law Review 52 (2000): 1545, 1547; Paul M. Schwartz, "Beyond Lessig's Code for Internet Privacy: Cyberspace Filter, PrivacyControl, and Fair Information Practices," Wisconsin Law Review 2000 (2000): 743; Julie E. Cohen, "DRM and Privacy," Berkeley Technology Law Journal 18 (2003): 575, 577; Marc Rotenberg, "Fair Information Practices and the Architecture of Privacy: (What Larry Doesn't Get)," Stanford Technology Law Review (2001): 1, 89–90. Andrew Shapiro discusses a similar idea in The Control Revolution, 158–65.· #48.
See Neil M. Richards, "Reconciling Data Privacy and the First Amendment," UCLALaw Review 52 (2005): 1148, 116. Richards rightly identifies the brilliant Eugene Volokh as the strongest proponent of the view that the First Amendment restricts privacy property. But the comprehensive view Richards offers of the range of rules regulating privacy is quite persuasive against the Volokh position.· #49.
William McGeveran, "Programmed Privacy Promises: P3P and Web Privacy Law," New York University Law Review 76 (2001): 1813, 1843.· #50.
The important limit to contracts, however, is that they typically bind only people "within privity," meaning parties to the contract. Thus, an agreement I enter in with you about how you promise not to use a book I've sold you (e.g., a promise not to review it before a certain date) won't bind someone else who comes across the book and reads it.· #51.
As described above, the weakness is linked to the point above about "privity." Unlike a rule of property that travels automatically with the property, a rule built out of agreements reaches only as far as the agreements.· #52.
Barlow, "The Economy of Ideas," Wired (March 1994), available at http://www.wired.com/wired/archive/2.03/economy.ideas.html (cached: http://www.webcitation.org/5J6lk1mDt) ("informa tion wants to be free").· #1.
See 47 CFR 73.658(e) (1998); see also Herbert J. Rotfeld et al., "Television Station Standards for Acceptable Advertising," Journal of Consumer Affairs 24 (1990): 392.· #2.
See Strafgesetzbuch (penal code) (StGB) 130–31, reprinted in German Criminal Law, vol. 1, edited by Gerold Harfst, translated by Otto A. Schmidt (W–rzburg: Harfst Verlag, 1989), 75–76.· #3.
Built by industry but also especially by Cypherpunks — coders dedicated to building the tools for privacy for the Internet. As Eric Hughes writes in "A Cypherpunk's Manifesto" (in Applied Cryptography, 2d ed., by Bruce Schneier New York: Wiley, 1996, 609): "We the Cypherpunks are dedicated to building anonymous systems. We are defending our privacy with cryptography, with anonymous mail forwarding systems, with digital signatures, and with electronic money. Cypherpunks write code. We know that someone has to write software to defend privacy, and since we can't get privacy unless we all do, we're going to write it. We publish our code so that our fellow Cypherpunks may practice and play with it. Our code is free for all to use, worldwide."· #4.
John Perry Barlow has put into circulation the meme that, "in cyberspace, the First Amendment is a local ordinance"; "Leaving the Physical World," available at http://www.eff.org/Misc/Publications/John_Perry_Barlow/HTML/leaving_the_physical_world.html (cached: http://www.webcitation.org/5J6lmf9hY).· #5.
Or it may well be that our understanding of First Amendment doctrine is insufficiently focused on its history with electronic media. See Marvin Ammori, "Another Worthy Tradition: How the Free Speech Curriculum Ignores Electronic Media and Distorts Free Speech Doctrine," Missouri Law Review 70 (2005): 59.· #6.
See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon PapersCase (Berkeley: University of California Press, 1996), 101, 139.· #7.
Ibid., 100.· #8.
See ibid., 2.· #9.
See ibid., 2, 42.· #10.
Ibid., 47–63.· #11.
Sanford J. Ungar, The Papers and the Papers: An Account of the Legal and Political Battleover the Pentagon Papers (New York: Columbia University Press, 1989), 120; cited in Rudenstine, The Day the Presses Stopped , 92.· #12.
See Rudenstine, The Day the Presses Stopped , 105.· #13.
Near v. Minnesota, 283 US 697, 716 (1931); cf. United States v. Noriega, 917 F2d 1543 (11th Cir 1990) (affirming the prior restraint of audiotapes of the defendant's conversations with his US 976 (1990) (Justice Thurgood Marshall dissenting).· #14.
See, for example, Organization for a Better Austin v. Keefe, 402 US 415, 418–19 (1971); Bantam Books, Inc., v. Sullivan, 372 US 58, 70 (1963); Near v. Minnesota, 283 US 697, 713–14.· #15.
The standard arguments are summarized well by Kathleen M. Sullivan and Gerald Gunther: "(1) It is easier for an official to restrict speech `by a simple stroke of the pen' than by the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will have a professional bias in favor of censorship, and thus will systematically overvalue government interests and undervalue speech. (3) Censors operate more informally than judges and so afford less procedural safeguards to speakers. (4) Speech suppressed in advance never reaches the marketplace of ideas at all. (5) When speech is suppressed in advance, there is no empirical evidence from which to measure its alleged likely harms"; First Amendment Law (New York: Foundation Press, 1999), 339–40, citing Thomas Emerson, "The Doctrine of Prior Restraint," Law and Contemporary Problems 20 (1955): 648. Frederick Schauer offers a nice balance to this commonplace theory; see "Fear, Risk, and the First Amendment: Unraveling the `Chilling Effect,'" Boston University Law Review 58 (1978): 685, 725–30.· #16.
In a particularly telling exchange, Justice Stewart asked Professor Bickel about a case in which disclosure "would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers. What should we do?" Bickel replied that his "inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort"; May It Please the Court: The Most Significant Oral Arguments Made Before the Supreme Court Since 1955, edited by Peter Irons and Stephanie Guitton (New York: Free Press, 1993), 173.· #17.
In a concurring opinion, Justice Potter Stewart wrote that the prior restraint at issue was invalid since he could not "say that disclosure of the Pentagon Papers will surely result in direct, immediate, and irreparable damage to our Nation or its people"; New York Times Company v. United States, 403 US 713, 730 (1971) (per curiam). This standard has frequently been thought to reflect the position of the Court; see Laurence H. Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), 731; Morton H. Halperin and Daniel N. Hoffman, Top Secret: National Security and the Right to Know (Washington, D.C.: New Republic Books, 1977), 147 n.22; see also Alderman v. Philadelphia Housing Authority, 496 F2d 164, 170 (3d Cir 1974), cert. denied, 419 US 844 (1974) (prior restraint must be supported by "compelling proof" that it is "essential to a vital government interest").· #18.
See United States v. Progressive, Inc., 467 FSupp 990 (WDWis 1979); see also L. A. Powe Jr., "The H-Bomb Injunction," University of Colorado Law Review 61 (1990): 55, 56.· #19.
The Milwaukee Sentinel and Fusion magazine had published articles dealing with sim ilar concepts; see A. DeVolpi et al., Born Secret: The H-Bomb, The Progressive Case, and NationalSecurity (New York: Pergamon Press, 1981), 102, 106; see also Howard Morland, The Secret That Exploded (New York: Random House, 1981), 223, 225–26.· #20.
See Floyd Abrams, "First Amendment Postcards from the Edge of Cyberspace," St.John's Journal of Legal Commentary 11 (1996): 693, 699.
NTSB Chairman Jim Hall announced later that investigations confirmed that a fuel tank explosion caused the crash; see "Statement of Jim Hall, Chairman, National Transportation Safety Board," July 16, 1998, available at http:// www.ntsb.gov/pressrel/1998/980716.htm (cached: http://www.webcitation.org/5J6lprahZ).· #22.
See Robert E. Kessler, "TWA Probe: Submarines off Long Island/Sources: But No Link to Crash of Jetliner," Newsday, March 22, 1997, A8.· #23.
See, for example, James Sanders, The Downing of TWA Flight 800 (New York: Kensing ton Publishing, 1997), 131–37; Accuracy in Media et al., "TWA 800 — Missile Website Roadmap," available at http://www.angelfire.com/hi/TWA800/ (cached: http://www.webcitation.org/5J6luTDWq); Mark K. Anderson, "Friendly Ire," available at http://personals.valleyadvocate.com/articles/twa3.html (cached: http://www.webcitation.org/5J6lwXVJ0); Ian W. Goddard, "TWA Flight 800 and Facts Pertaining to U.S. Navy Culpability," available at http://users.erols.com/igoddard/twa-fact.htm (cached: http://www.webcitation.org/5J6lzPjpQ).· #24.
See Sanders, The Downing of TWA Flight 800, 29–30, 75, 70–79, 171–73.· #25.
We can tell that it is false, of course, as in, "The cat was alive and not alive."· #26.
Initial CBS article on controversy: available at http://www.cbsnews.com/stories/2004/09/10/politics/main642729.shtml (cached: http://www.webcitation.org/5J6mmhE6S); CBS acknowledgment of mis take: available at http://www.cbsnews.com/stories/2004/09/20/politics/main644539.shtml (cached: http://www.webcitation.org/5J6mqgf2t).· #27.
See Howard Kurtz, "Rather Admits `Mistake in Judgment,'" Washington Post, Septem ber 21, 2004, A01. (". . . ending a nearly two-week-long defense of the network's journalistic conduct that media analysts say has badly hurt its credibility.")· #28.
Jim Giles, "Internet Encyclopedias Go Head to Head," firstname.lastname@example.org, December 12, 2005, available at http://www.nature.com/news/2005/051212/full/438900a.html (cached: http://www.webcitation.org/5J6mtVp7S).· #29.
See Cass Sunstein, Infortopia: How Many Minds Produce Knowledge (New York: Oxford University Press, 2006).· #30.
See Seth Finkelstein, Al Gore "invented the Internet" — resources, transcript: Vice Pres ident Gore on CNN's Late Edition (last updated Fri April 28, 2006), available at http://www.sethf.com/gore/ (cached: http://www.webcitation.org/5J6mwyqXn).· #31.
Ginsburg v. New York , 390 US 629 (1968). Obscenity is not constitutionally protected speech, and federal laws prohibit the transportation of obscene materials; see 18 USCA 1462 (1984), amended by 18 USCA 1462 (Supp 1999). In Miller v. California, the Supreme Court described the test for obscenity as: "(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value"; Miller v. California, 413 US 15, 24 (1973) (5–4 decision), rehearing denied, 414 US 881 (1973). Porn, on the other hand, is protected by the First Amendment but may be regulated to promote the state's interest in protecting children from harmful materials so long as the regulation is the least restrictive means to further the articulated interest; see Ginsberg v. New York, 390 US 629, 637–40 (1968). Child porn may be prohibited as obscene material even if it is not obscene under the Miller test, owing to the strong state interest in preventing the sexual exploitation of children; see New York v. Ferber, 458 US 747, 764 (1982). Child porn is not constitutionally protected, and federal law prohibits the transportation of child porn; see 18 USCA 2252 (1984), amended by 18 USCA 2252 (Supp 1999).· #34.
Justice Sandra Day O'Connor listed more than 40 states with such law in her concur rence in Reno v. ACLU, 521 US 844, 887 n.2.· #35.
Ginsberg v. New York, 390 US 629 (1968).· #36.
See Blake T. Bilstad, "Obscenity and Indecency in a Digital Age: The Legal and Political Implications of Cybersmut, Virtual Pornography, and the Communications Decency Act of 1996," Santa Clara Computer and High Technology Law Journal 13 (1997): 321, 336–37.· #37.
Marty Rimm, "Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2,000 Cities in Forty Countries, Provinces, and Territories," Georgetown University Law Journal 83 (1995): 1849. Godwin provides the whole history of the Rimm article, describing the most significant problems and consequences of the "misleading" and "false" statements, and its eventual demise; Cyber Rights, 206–59; see also Jonathan Wallace and Mark Mangan, Sex, Laws, and Cyberspace (New York: M&T Books, 1996), ch. 6.· #38.
See Philip Elmer-DeWitt, "On a Screen Near You: Cyberporn — It's Popular, Pervasive, and Surprisingly Perverse, According to the First Survey of Online Erotica — And There's No Easy Way to Stamp It Out," Time, July 3, 1995.· #39.
47 USCA 223(e)(5)(A) (Supp 1999).· #40.
The law was extinguished (at least in part) at 521 US 844 (1997); see Eugene Volokh, "Freedom of Speech, Shielding Children, and Transcending Balancing," Supreme Court Review 1997 (1997): 141.· #41.
See Federal Communications Commission v. Pacifica Foundation, 438 US 726, 748–50 (1978) (plurality). Though Pacifica has been criticized strongly, see Steven H. Shiffrin, The First Amendment, Democracy, and Romance (Cambridge, Mass.: Harvard University Press, 1990), 80, as Jonathan Weinberg convincingly argues, Pacifica continues to have influence in the broadcasting context; "Cable TV, Indecency, and the Court," Columbia-VLA Journal of Law and the Arts 21 (1997): 95.· #42.
Ashcroft v. ACLU, 540 U.S. 1072 (2003). Child Online Privacy Protection Act of 1998, Title XIV, Section 1401.· #43.
Ashcroft v. ACLU, 540 U.S. 1072 (2003).· #44.
Ginsberg v. New York, 390 U.S. 629 (1968).· #45.
There is also a doctrine within First Amendment law that might limit the ability of the government to regulate when the regulation is ineffective. See Reno v. ACLU, 929 F. Supp 824, 848 (D. Pa.1996), where the court talks about how this regulation wouldn't work in foreign jurisdictions anyway.· #46.
Ann Beeson and Chris Hansen, "Fahrenheit 451.2: Is Cyberspace Burning?" (American Civil Liberties Union White Paper, March 17, 2002).· #47.
Not all of these filters function by using blacklists. Two examples of filtering programs that use an algorithmic approach rather than blacklists are PixAlert's SafeScreen (available at http://www.safescreen.net (cached: http://www.webcitation.org/5J6mzZs25)) and LTU Technologies' ImageSeeker (available at http://www.ltutech.com/en/ (cached: http://www.webcitation.org/5J6n39fZm)), the latter of which is supposedly being used by the FBI and DHS in child pornography investigations.· #48.
Paul Resnick, "PICS-Interest@w3.0rg, Moving On," January 20 1999, available at http://lists.w3.org/Archives/Public/pics-interest/1999Jan/0000.html (cached: http://www.webcitation.org/5J6n63Y6x); Paul Resnick, "Filtering Information on the Internet," Scientific American 106 (March 1997), also available at http://chinese-school.netfirms.com/Internet-filtering.html (cached: http://www.webcitation.org/5J6n8HCwv); Paul Resnick, "PICS, Censorship, and Intellectual Freedom FAQ," available at http:// www.w3.org/PICS/PICS-FAQ-980126.html; (cached: http://www.webcitation.org/5J6nCLOBL); Paul Resnick and Jim Miller, "PICS: Internet Access Controls Without Censorship," Communications of the ACM 39 (1996): 87, also available at http://www.w3.org/PICS/iacwcv2.htm (cached: http://www.webcitation.org/5J6nFRiGH); Jim Miller, Paul Resnick, et al., "PICS 1.1 Rating Services and Rating Systems — and Their MachineReadable Descriptions," October 31, 1996, available at http://www.w3.org/TR/REC-PICS-services (cached: http://www.webcitation.org/5J6nHtqyL)); Tim Krauskopf, Paul Resnick, et al., "PICS 1.1 Label Distribution — Label Syntax and Communication Protocols," October 31, 1996, available at http://www.w3.org/TR/REC-PICS-labels (cached: http://www.webcitation.org/5J6nJqgxN); Christopher Evans, Paul Resnick, et al., "W3C Recommendation: PICS Rules 1.1, REC-PICS, Rules-971229," December 29, 1997, available at http://www.w3.org/TR/REC-PICSRules (cached: http://www.webcitation.org/5J6nMGR34).· #49.
See Jonathan Weinberg, "Rating the Net," Hastings Communications and EntertainmentLaw Journal 19 (1997): 453, 478 n.108.· #50.
This claim, of course, is too strong. The site could block deceptively, making it seem as if the user were gaining access but actually not giving her access to what she believes she is gaining access to.· #51.
See Richard Thompson Ford ("The Boundaries of Race: Political Geography in Legal Analysis," Harvard Law Review 107 : 1841, 1844), who asserts that jurisdictional boundaries perpetuate racial segregation and inequality; Gerald E. Frug ("Universities and Cities," Connecticut Law Review 30 : 1199, 1200), explains how universities erect borders to divorce themselves from surrounding poverty and argues that universities should critique these borders; Lani Guinier ("More Democracy," University of Chicago Legal Forum 1995 : 1, 3) advocates a cross-racial participatory democracy that demands a concern for, and a familiarity with, the views of others.· #52.
See Regents of the University of California v. Bakke, 438 US 265, 312 (1978) (Justice Lewis F. Powell, quoting Keyishian v. Board of Regents, 385 US 589, 603 : "The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection'").· #53.
See Sunstein, Democracy and the Problem of Free Speech, xvi–xx; Fiss, The Irony of FreeSpeech, 3, 37–38; Andrew Shapiro's powerful analysis of Sunstein's point is better tuned to the realities of the Net; see The Control Revolution, 107–12.· #54.
Sunstein, Democracy and the Problem of Free Speech , xvi–xx.· #55.
Ithiel de Sola Pool, Technologies Without Boundaries: On Telecommunications in aGlobal Age, edited by Eli M. Noam (Cambridge, Mass.: Harvard University Press, 1990), 15.· #56.
See Geoffrey R. Stone, "Imagining a Free Press," Michigan Law Review 90 (1992): 1246, 1264.· #57.
Dan Hunter argues it is not our choice anyway. See Dan Hunter, "Philippic.com," California Law Review 90 (2002): 611. Greg Laughlin is convinced the concerns are overstated. See Gregory K. Laughlin, "Sex, Lies, and Library Cards: The First Amendment Implications of the Use of Software Filters to Control Access to Internet Pornography in Public Libraries," Drake Law Review 51 (2003): 213, 267–68 n.287. For a review of Congress's latest effort to facilitate filtering, see Susan P. Crawford, Symposium, "Law and the Information Society, Panel V: Responsibility and Liability on the Internet, Shortness of Vision: Regulatory Ambition in the Digital Age," Fordham Law Review 74 (2005): 1, 6. ("The next information-flow membrane mandate to pass Congress — again, prompted by legislators' fixation on indecent (but legal) content online — was the Children's Internet Protection Act ("CIPA"), which required libraries to install filtering software on all their computers capable of accessing the Internet in order to hold on to their federal funding. The goal of this 2000 legislation was to condition provision of such funding on libraries' use of filters that block access to visual depictions that are harmful to minors (when accessed by a minor). On June 23, 2003, after another three years of litigation, the Supreme Court upheld CIPA, with two "swing" Justices (Anthony Kennedy and Stephen Breyer) suggesting that adults would be able to ask libraries to unblock legal sites (legal for adult viewing, if harmful to minors) that had been blocked by the installed filters. Even though the tie to the CDA was clear — this was another congressional attempt to eliminate online sexual material using technology that would also inevitably filter out protected speech — the link to federal funding made this case one the Justices could decide differently. Indeed, the federal funding element may have been the crucial difference between CDA and CIPA. One European commentator noted the CIPA opinion as an `important shift' by an American legal system that had been `previously critical of government's attempts to regular Internet access.'")· #58.
Compare Jonathan Zdziarski, "Ending Spam: Bayesian Content Filtering and the Art of Statistical Language Classification 31 (2005) and DSPAM, available at http://dspam.nuclearelephant.com/ (cached: http://www.webcitation.org/5J6nP0fwQ).· #59.
Zdziarski, Ibid., 25.· #60.
Ibid., 31. But a related point can be made about Bayesian filtering as well, since many of the tools are themselves open source or free software. DSPAM, for example, is licensed under the GPL.· #61.
This is being charitable. Zdziarski is much more critical of "vigilantes who don't adhere to any form of proper procedure before blacklisting networks." Ibid., 28.· #62.
See Arik Hesseldahl, U.S. Congress Makes No Progress on Spam , December 26, 2003, available at http://www.forbes.com/2003/11/26/cx_ah_1126tentech.html (cached: http://www.webcitation.org/5J6nRm2gD). Also Todd Bishop, Software Notebook: Is Gates' prediction on spam a bust? Seattle Post-Intelligencer (1/23/06). Estimates of success here differ dramatically. Microsoft estimates it blocks 95 percent of spam from reaching e-mail inboxes.· #63.
Jonathan Zdziarski, Ending Spam: Bayesian Content Filtering and the Art of StatisticalLanguage Classification (San Francisco: No Starch Press, 2005) 23.· #64.
See CAN-SPAM Act of 2003, Public Law 108-187 (2003). For a review of European leg islation, see D. I. Cojocarasu, Anti-spam Legislation Between Privacy and Commercial Interest: An Overview of the European Union Legislation Regarding the E-mail Spam (Oslo: University of Oslo, 2006). In my view, we define spam as "unsolicited bulk commercial e-mail." Each element is necessary. Unsolicited, meaning there is no agreement to receive such e-mail. If there is an agreement, the requirements would be removed. Bulk meaning it would not be intended to regulate circulations to friends or within small groups. Cf. Sonia Arrison, "Canning Spam: An Economic Solution to Unwanted Email" 9 (Pacific Research Institute, Feb. 2004). Commercial meaning it would not regulate social or political e-mail. And e-mail, meaning maybe more than e-mail — perhaps, for example, including blog spam.· #65.
In my view, Congress should be permitted to discriminate in favor of political speech, and should thus be permitted to exempt political speech from any "spam" regulation. This is not only because of the special value in this speech, but also, and more importantly, because abuse with political speech is more naturally regulated. If I am trying to win your vote, I'm not likely to annoy you with spam. But if I'm trying to sell you Viagra, whether I annoy you or not won't matter much to me.· #66.
This was the law in many states before the federal CAN-SPAM Act preempted this state law. But as those laws didn't have the enforcement remedy I propose here, they are not directly relevant to the argument I am making here. See "Subject Line Labeling as a Weapon Against Spam," A CAN-SPAM Act Report of Congress (FTC June 2005). This solution is just one instance of a general form which aims to shift the burden of revealing information to the sender. For a much more sophisticated proposal, see Theodore Loder, Marshall Van Alstyne, and Rick Wash (2006) "An Economic Response to Unsolicited Communication", Advances in Economic Analysis and Policy Vol. 6, No. 1, Article 2, available at http://www.bepress.com/bejeap/advances/vol6/iss1/art2 (cached: http://www.webcitation.org/5J6nU3t5t).· #67.
See Spammer-X, Jeffrey Polsuns and Stu Sjouwerman, Inside the Spam Cartel: TradeSecrets from the Dark Side (New York: Syngress Publishing, 2004).· #68.
R. Polk Wagner, "On Software Regulation," Southern California Law Review 78 (2005): 457, 516.· #69.
Lessig, Free Culture: The Nature and Future of Creativity , xiii–xvi.· #70.
Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University ofColorado Law Review 71 (2000): 1203, 1249.· #71.
See, e.g., United States v. Dunifer, 219 F.3d 1004 (9th Cir. 2000). (FCC closure of pirate radio station Free Radio Berkeley); United States v. Any & All Radio Station Transmission Equip., 2004 U.S. Dist. LEXIS 24899 (D.N.Y. 2004); United States v. Szoka, 260 F3d 516 (6th Cir. 2001). See 47 CFR 73.277 (1998).· #72.
47 USCA 81–119 (1927) (repealed by the Communications Act of 1934).· #73.
See Red Lion Broadcasting Company v. Federal Communications Commission, 395 US 367, 375–77 (1969); National Broadcasting Company v. United States, 319 US 190, 212–13 (1943). Thomas Hazlett makes a powerful critique of Frankfurter's history of the emergence of any necessity for FCC regulation; see Thomas W. Hazlett, "Physical Scarcity, Rent Seeking, and the First Amendment," Columbia Law Review 97 (1997): 905, 933–34.· #74.
See Turner Broadcasting System, Inc. v Federal Communications Commission, 512 US 622, 637–38 (1997); see also Huber, Law and Disorder in Cyberspace.· #75.
See National Broadcasting Company, Inc. v. Columbia Broadcasting System, 213.· #76.
See Ronald H. Coase, "The Federal Communications Commission," Journal of Law andEconomics 2 (1959): 1.· #77.
Paul Starr, The Creation of Media: Political Origins of Modern Communications (Basic Books, 2004), 25–46.· #78.
Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University ofColorado Law Review 71 (2000): 1203.· #79.
See, for example, research at MIT to build viral mesh networks which increase in capacity as the number of users increases. Collaborative (Viral) Wireless Networks, available at http://web.media.mit.edu/~aggelos/viral.html (cached: http://www.webcitation.org/5J6nWkYbP).· #80.
Ethernet effectively functions like this. Data on an Ethernet network are streamed into each machine on that network. Each machine sniffs the data and then pays attention to the data intended for it. This process creates an obvious security hole: "sniffers" can be put on "promiscuous mode" and read packets intended for other machines; see Loshin, TCP/IP Clearly Explained, 44–46.· #81.
See Yochai Benkler and Lawrence Lessig, "Net Gains," New Republic, December 14, 1998.· #82.
The founder of this argument must be Eli Noam; see "Spectrum Auctions: Yesterday's Heresy, Today's Orthodoxy, Tomorrow's Anachronism — Taking the Next Step to Open Spectrum Access," Journal of Law and Economics 41 (1998): 765. Benkler has spiced it up a bit (in my view, in critical ways) by adding to it the value of the commons. For an extraordinarily powerful push to a similar political (if not technological) end, see Eben Moglen, "The Invisible Barbecue," Columbia Law Review 97 (1997): 945. Moglen notes the lack of debate regarding the sociopolitical consequences of carving up telecommunication rights at the "Great Barbecue" and draws a parallel with the Gilded Age's allocation of benefits and privileges associated with the railroad industry.· #1.
Audio Tape: Interview with Philip Rosedale 2 (1/13/06) (transcript on file with author).· #2.
Ibid., 4–6.· #3.
Ibid., 5.· #4.
Castronova, Synthetic Worlds, 207.· #5.
Ibid., 216.· #6.
Ibid., 213.· #7.
See Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, Mass.: Harvard University Press, 1991), 25–62; James A. Gardner, "Liberty, Community, and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote," University of Pennsylvania Law Review 145 (1997): 893; Quiet Revolution in the South, edited by Chandler Davidson and Bernard Grofman (Princeton, N.J.: Princeton University Press, 1994): 21–36.· #8.
See Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in RepresentativeDemocracy (New York: Free Press, 1994); Richard Thompson Ford, "Beyond Borders: A Partial Response to Richard Briffault," Stanford Law Review 48 (1996): 1173; Richard Thompson Ford, "Geography and Sovereignty: Jurisdictional Formation and Racial Segregation," Stanford Law Review 49 (1997): 1365; Jerry Frug, "Decentering Decentralization," University of Chicago Law Review 60 (1993): 253; Jerry Frug, "The Geography of Community," Stanford Law Review 48 (1996): 1047.· #9.
See Michael Walzer_, Spheres of Justice: A Defense of Pluralism and Equality_ (New York: Basic Books, 1983).· #10.
See Charles M. Tiebout, "A Pure Theory of Local Expenditures," Journal of PoliticalEconomy 64 (1956): 416; see also Clayton P. Gillette, Local Government Law: Cases and Materials (Boston: Little, Brown, 1994), 382; Vicki Been, "`Exit' as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine," Columbia Law Review 91 (1991): 473, 514–28.· #11.
See David G. Post, "Governing Cyberspace," Wayne Law Review 43 (1996): 155; David Post, "The New Electronic Federalism," American Lawyer (October 1996): 93; David G. Post, "The `Unsettled Paradox': The Internet, the State, and the Consent of the Governed," Indiana Journal of Global Legal Studies 5 (1998): 521, 539; David R. Johnson and Kevin A. Marks, "Mapping Electronic Data Communications onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) Be Our Guide?," Villanova Law Review 38 (1993): 487; Johnson and Post, "Law and Borders"; David G. Post, "Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace," Journal of Online Law (1995): article 3, available at http://www.wm.edu/law/publications/jol/articles/post.shtml (cached: http://www.webcitation.org/5J6nZ1Sg9).· #12.
See Phillip E. Areeda et al., Antitrust Law, vol. 2A (Boston: Little, Brown, 1995), 85–87.· #13.
See Post, "Anarchy, State, and the Internet," 29–30.· #14.
In the time since Code v1_,_ this point has become much more questionable. The ability of people playing games to effectively move from one game to another has increased. Here again, real space and cyberspace are becoming more alike.· #15.
F. Gregory Lastowka and Dan Hunter, "The Laws of Virtual Worlds," California LawReview 92 (2004): 1, 73.· #16.
Or at least three of the four regions in the early United States shared this history; see Fischer, Albion's Seed, 827–28.· #17.
Article V of the Constitution states (obscurely no doubt) that "provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article." These clauses state: "(1) The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten Dollars for each Person"; and "(4) No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."· #18.
See John F. Kennedy, Profiles in Courage (New York: Harper, 1956), ch. 3.· #1.
The story of the suit is told in Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199 (9th Cir. 2006). See also Jack Goldsmith and Timothy Wu, Who Controls the Internet: Illusions of a Borderless World ; Michael Geist, "Is There a There There? Towards Greater Certainty for Internet Jurisdiction," 16 Berkeley Technology Law Journal 1345 (2001). For criticism of the conflict (and its significance) see Marc H. Greenberg, "A Return to Lilliput: The LICRA v. Yahoo! Case and the Regulation of Online Content in the World Market," Berkeley Technology Law Journal 18 (2003): 1191.· #2.
Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1202 (9th Cir. 2006).· #3.
Ibid., 1223.· #4.
See "France Bans Internet Nazi Auctions," BBC NEWS, May 23, 2000, available at http://news.bbc.co.uk/1/hi/world/europe/760782.stm (cached: http://www.webcitation.org/5J6nb6NmM).· #5.
Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1203 (9th Cir. 2006).· #6.
Adam D. Thierer, "Web Restrictions Unlikely to Muzzle Neo-Nazi Speech," Cato Insti tute Web Site (Jan 15, 2001) (available at http://www.cato.org/dailys/01-15-01.html (cached: http://www.webcitation.org/5J6ndBsSx)).· #7.
Available at http://news.com.com/Canada+blocks+free+Net+TV/2100-1023_3-981254.html?tag=st.ref.goo (cached: http://www.webcitation.org/5J6ngEK77). John Borland, "Broadcasters Win Battle Against iCraveTV.com," CNET NEWS, Jan. 28, 2000, available at http://news.com.com/2100-1033-236255.html (cached: http://www.webcitation.org/5J6niIT2x).· #8.
Michael Geist, "Is There a There There? Towards Greater Certainty for Internet Jurisdic tion," Berkeley Technology Law Journal 16 (2001): 1345.· #9.
Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199 (9th Cir. 2006).· #10.
Reidenberg points out that the translation of the French ruling offered to the District Court in the United States was flawed. Joel R. Reidenberg, "Technology and Internet Jurisdiction," University of Pennsylvania Law Review 153 (2005): 1951, 1959.· #11.
Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1203 (9th Cir. 2006).· #12.
Jack Goldsmith and Timothy Wu, Who Controls the Internet: Illusions of a BorderlessWorld (2006), 41.· #13.
There has been a rich, and sometimes unnecessary, debate about whether indeed cyberspace is a "place." I continue to believe the term is useful, and I am confirmed at least partly by Dan Hunter, "Cyberspace as Place and the Tragedy of the Digital Anti-commons," California Law Review 91 (2003): 439. Michael Madison adds a valuable point about what the place metaphor misses in Michael J. Madison, "Rights of Access and the Shape of the Internet," Boston College Law Review 44 (2003): 433. Lemley too adds an important perspective. See "Place and Cyberspace," California Law Review 91 (2003): 521.· #14.
See Restatement (Third) of Foreign Relations Law (1986), 402(2) and comment (e).· #15.
Child Sexual Abuse Prevention Act, 18 USC 2423(b) (1994). See Margaret A. Healy, "Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?," Fordham International Law Journal 18 (1995): 1852, 1902–12.· #16.
Castronova, Synthetic Worlds (2005), 7.· #17.
See Bill Grantham, "America the Menace: France's Feud With Hollywood," WorldPolicy Journal 15, 2 (Summer 1998): 58; Chip Walker, "Can TV Save the Planet?," American Demographics (May 1996): 42.· #18.
See, for example, David R. Johnson and David Post, "Law and Borders: The Rise of Law in Cyberspace," Stanford Law Review 48 (1996): 1379–80.· #19.
Jack Goldsmith and Timothy Wu, Who Controls the Internet . See Jack L. Goldsmith, "Against Cyberanarchy," University of Chicago Law Review 65 (1998): 1199; Jack L. Goldsmith, "The Internet and the Abiding Significance of Territorial Sovereignty," Indiana Journal of Global Legal Studies 5 (1998): 475; see also David Johnston, Sunny Handa, and Charles Morgan, Cyberlaw: What You Need to Know About Doing Business Online (Toronto: Stoddart, 1997), ch. 10. Allan R. Stein ("The Unexceptional Problem of Jurisdiction in Cyberspace," The International Lawyer 32 : 1167) argues that the jurisdictional problems in cyberspace are like those found in real-space international law.· #20.
See Jessica Litman, "The Exclusive Right to Read," Cardozo Arts and Entertainment LawJournal 13 (1994): 29.· #21.
See John Perry Barlow, "A Declaration of the Independence of Cyberspace" (1996), available at http://homes.eff.org/~barlow/Declaration-Final.html (cached: http://www.webcitation.org/5J6nkr1we).· #23.
See Communications Decency Act, PL 104-104, 110 Stat. 56 (1996).· #24.
Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University ofColorado Law Review 71 (2000): 1203, 1206–07 (15 in 101; 23 in 102; 34 in 103; 66 in 104; 275 in 105; 348 for first session of 106).· #25.
Ibid., 1203, 1232, 1234, 1237.· #26.
Michael Geist, "Cyberlaw 2.0," Boston College Law Review 44 (2003): 323, 332. For a related point, see Matthew Fagin, "Regulating Speech Across Borders: Technology vs. Values," Michigan Telecommunications Technology Law Review 9 (2003): 395.· #27.
Geist, Ibid., 343.· #28.
Ibid., 338.· #29.
Ibid., 344–45.· #30.
Patricia L. Bellia, "Chasing Bits Across Borders," University of Chicago Legal Forum 35, 100 (2001).· #31.
Viktor Mayer-Sch–nberger and Teree E. Foster, A Regulatory Web: Free Speech and theGlobal Information Infrastructure , 3 Mich. Telecomm. Tech. L. Rev. 45, 45 (1997).· #32.
I describe this example at the state level, but the regime I'm imagining would work at the level of nation-states, not U.S. states.· #33.
See Minnesota Statute 609.75, subd. 2–3, 609.755(1) (1994), making it a misde meanor to place a bet unless done pursuant to an exempted, state-regulated activity, such as licensed charitable gambling or the state lottery. Internet gambling organizations are not exempted.· #34.
See Scott M. Montpas, "Gambling Online: For a Hundred Dollars, I Bet You Govern ment Regulation Will Not Stop the Newest Form of Gambling," University of Dayton Law Review 22 (1996): 163.· #35.
Or at least it could work like this. Depending on the design, it could reveal much more.· #36.
See 18 USC 1955 (regulating businesses, defining interstate "illegal gambling" as gam bling that occurs in a state in which it is illegal).· #37.
As described above, see supra Chapter 5, note 38, within six months, one of the founders of Google was having second thoughts. See Clive Thompson, "Google's China Problem (And China's Google Problem)," New York Times, April 23, 2006, Section 6, p. 64.· #38.
See Wikipedia, "List of Words Censored by Search Engines in Mainland China," avail able at http://en.wikipedia.org/wiki/List_of_words_blocked_by_search_engines_in_Mainland_China (cached: http://www.webcitation.org/5J6nnL3sm).· #1.
Missouri v. Holland, 252 US 416, 433 (1920).· #2.
See, for example, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making ofthe Constitution (New York: Alfred A. Knopf, 1996), 289–90; see also Akhil Reed Amar, "The Bill of Rights as a Constitution" (Yale Law Journal 100 : 1131), for another such understanding of the Bill of Rights.· #3.
This is not to deny that some aspects of the equality delineated in the Civil War amend ments echoed in our constitutional past. The abolitionists, of course, made great weight of the Declaration of Independence's claims to equality; see, for example, Trisha Olson, "The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment," Arkansas Law Review 48 (1995): 347, 364. An amendment can be transformative, however, even if it is simply recalling a part of the past and reestablishing it — as Germany did, for example, after World War II.· #4.
See Plessy v. Ferguson, 163 US 537 (1896).· #5.
See A. Leon Higginbotham Jr., "Racism in American and South African Courts: Simi larities and Differences," New York University Law Review 65 (1990): 479, 495–96.· #6.
These laws permitted compelled labor to pay a debt; see Bailey v. Alabama, 219 US 219 (1911) (striking peonage laws under the Thirteenth Amendment).· #7.
Brown v. Board of Education, 347 US 483 (1954).· #8.
See, for example, Dennis v. United States, 341 US 494 (1951) (upholding convictions under the Smith Act, which banned certain activities of the Communist Party).· #9.
See Korematsu v. United States, 323 US 214 (1944).· #10.
See, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980).· #11.
I've overstated the security of the American judiciary. An incident with District Court Judge Harold Baer suggests continued insecurity, especially in the context of the war on drugs. Baer released a criminal defendant after suppressing a search that had discovered eighty pounds of narcotics; Don Van Natta Jr., "Judge's Drug Ruling Likely to Stand," New York Times, January 28, 1996, 27. The decision was then attacked by presidential candidate Robert Dole, who called for Baer's impeachment; Katharine Q. Seelye, "A Get Tough Message at California's Death Row," New York Times, March 24, 1996, 29. President Clinton then joined the bandwagon, suggesting that he might ask for Baer's resignation if Baer did not reverse his decision; Alison Mitchell, "Clinton Pressing Judge to Relent," New York Times, March 22, 1996, 1. Baer then did reverse his decision; Don Van Natta Jr., "Under Pressure, Federal Judge Reverses Decision in Drug Case," New York Times, April 2, 1996, 1. Chief Judge Jon Newman, of the Second Circuit Court of Appeals, along with other judges, then criticized Dole's criticism of Baer, arguing that he went "too far"; Don Van Natta Jr., "Judges Defend a Colleague from Attacks," New York Times, March 29, 1996, B1.· #12.
I describe the Court's conception of its role in more detail in Lessig, "Translating Fed eralism."· #13.
Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978), 83.· #14.
See, for example, Felix Frankfurter, The Commerce Clause Under Marshall, Taney, andWaite (Chapel Hill: University of North Carolina Press, 1937), 82.· #15.
The relationship between a contested ground and a political judgment is more com plex than this suggests. I discuss it more extensively in Lawrence Lessig, "Fidelity and Constraint," Fordham Law Review 65 (1997): 1365.· #16.
ACLU v. Reno, 929 FSupp 824 (EDPa 1996); Shea v. Reno, 930 FSupp 916 (SDNY 1996).· #17.
I discuss this in Lessig, "Fidelity and Constraint."· #18.
One could well argue that during the crisis of the Depression deference by the Court to the Congress would have been well advised; see, for example, Sunstein, Democracy and the Problem of Free Speech, 39.· #19.
For the clearest statement of a contrary position, see Charles Fried, "Book Review: Per fect Freedom or Perfect Control?," Harvard Law Review 114 (2000): 606.· #20.
Fischer (Albion's Seed) shows how town planning in the United States followed habits in Europe.· #21.
David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: Univer sity of Chicago Press, 1994), 182–87. See also Dawn C. Nunziato, "The Death of the Public Forum in Cyberspace," Berkeley Technology Law Journal 20 (2005): 1115, 1170 n.2 (describing first amendment review of anti-dilution law).· #22.
Charles Fried, "Book Review: Perfect Freedom or Perfect Control?," Harvard LawReview 114 (2000): 606.· #23.
Paul Schiff Berman, "Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to `Private' Regulation," University of Colorado Law Review 71 (2000): 1263, 1269.· #24.
A. Michael Froomkin, "The Collision of Trademarks, Domain Names, and Due Process in Cyberspace," Communications of the ACM 44 (2001): 91. See also Jonathan Weinberg, "ICANN and the Problem of Legitimacy," Duke Law Journal 50 (2000): 187.· #25.
Internet Corporation for Assigned Names and Numbers, available at http://icann.org/index.html (cached: http://cache.codev2.cc/Link_107.pdf).· #26.
Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, dissenting).· #27.
See Wikipedia, "Duke Cunningham," available at http://en.wikipedia.org/wiki/Randy_%22Duke%22_Cunningham (cached: http://www.webcitation.org/5J6nriPtV).· #28.
The average term for a Supreme Court justice is 15 years. See http://www.supremecourtus.gov/about/institution.pdf (cached: http://www.webcitation.org/5J6ntfdHN). The average term for a Senator in the 109th Congress was 12.1 years, and for a member of the House, 9.3 years. See . The figures for campaign spending are derived from http://www.senate.gov/reference/resources/pdf/RS22007.pdf (cached: http://www.webcitation.org/5J6nwR1Lk).· #29.
Ernest F. Hollings, "Stop the Money Chase," Washington Post, Page B07, Feb. 19, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/02/17/AR2006021701847.html (cached: http://www.webcitation.org/5J6o12DI6).· #30.
Peter Francia and Paul Herrnson, "The Impact of Public Finance Laws on Fundraising in State Legislative Elections," 31 American Politics Research 5 (September 2003), confirms Hollings's numbers.· #1.
Deborah Hellman, in "The Importance of Appearing Principled" (Arizona Law Review 37 : 1107), describes the illegitimacy costs that courts incur when they overrule precedents for apparently political reasons.· #2.
Guido Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass.: Harvard University Press, 1982), 16–32; Guido Calabresi, "The Supreme Court, 1990 Term — Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores)," Harvard Law Review 105 (1991): 80, 83, 103–7, 119–20.· #3.
Or come close to doing so; see Richard A. Posner, The Problems of Jurisprudence (Cam bridge, Mass.: Harvard University Press, 1990), 300–301.· #4.
I am grateful to Viktor Mayer-Schoenberger for demonstrating this point to me. Hal Abelson points out that the components would have to be verifiable if they were not themselves open. Otherwise, components could function as Trojan Horses — pretending to be one thing while in reality being something else.· #5.
See Mark A. Lemley and David W. O'Brien, "Encouraging Software Reuse," Stanford LawReview 49 (1997): 255. See also, e.g., James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net," available at http://www.law.duke.edu/boylesite/intprop.htm (cached: http://www.webcitation.org/5J6o37Kq0).· #6.
For an extraordinary account of the damage done by copyright law to software devel opment, see Mark Haynes, "Black Holes of Innovation in the Software Arts," Berkeley Technology Law Journal 14 (1999): 503. See also David McGowan, "Legal Implications of Open Source Software," Illinois University Law Review 241 (2001).· #7.
Kennedy, Profiles in Courage, 71.· #8.
See Nicholas Negroponte, Being Digital (New York: Alfred A. Knopf, 1995), 18, 238.· #9.
Center for Responsive Politics, "'04 Elections Expected to Cost Nearly $4 Billion," Octo ber 21, 2004, available at http://www.opensecrets.org/pressreleases/2004/04spending.asp (cached: http://www.webcitation.org/5J6o5bS6e).· #10.
Chris Edwards, "Bush's Overspending Problem," CATO Institute, February 6, 2003, available at http://www.cato.org/research/articles/edwards-030206.html (cached: http://www.webcitation.org/5J6o7hhWq).· #11.
See, for example, James S. Fishkin, The Voice of the People (New Haven, Conn.: Yale University Press, 1995). For excellent work exploring how cyberspace might advance this general project, see Beth Simone Noveck, "Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer," Boston University Journal of Science and Technology Law 9 (2003): 1.· #12.
Dean Henry H. Perritt Jr. provides a well-developed picture of what "self-regulation" in the Internet context might be, drawing on important ideals of democracy; see "Cyberspace Self-government: Town Hall Democracy or Rediscovered Royalism?," Berkeley Technology Law Journal 12 (1997): 413. As he describes it, the possibility of self-governance depends importantly on architectural features of the Net — not all of which are developing in ways that will support democracy; see also Shapiro (The Control Revolution, 150–57, 217–30), who discusses "push-button politics" and tools of democracy.· #13.
Tocqueville, Democracy in America, vol. 1, 284–85.· #1.
Posting of Declan McCullagh, "Reporters Without Borders calls for regulation of U.S. Internet companies," available at http://www.politechbot.com/2006/01/12/reporters-without-borders (cached: http://www.webcitation.org/5J6o9W0S1).· #2.
Ronald Coase, "The Problem of Social Cost," Journal of Law and Economics (October 1960).· #3.
"Study: Spam Costs Businesses $13 Billion," CNN.COM, January 5, 2003, available at http://www.cnn.com/2003/TECH/biztech/01/03/spam.costs.ap/ (cached: http://www.webcitation.org/5J6oCxyBz).· #4.
Felix Oberholzer and Koleman Strumpf, "The Effect of File Sharing on Record Sales: An Empirical Analysis" 3 (Working Paper 2004).· #5.
David Blackburn, "On-line Piracy and Recorded Music Sales" (Harvard University, Job Market Paper, 2004.· #6.
Recording Industry Association of America Home Page, "Issues — Anti-Piracy: Old as the Barbary Coast, New as the Internet," available at http://www.riaa.com/issues/piracy/default.asp (cached: http://www.webcitation.org/5J6oF3Zfo).· #7.
David Blackburn, "On-line Piracy and Recorded Music Sales" (Harvard University, Job Market Paper, 2004), available at .· #8.
Family Entertainment and Copyright Act of 2005 (P.L. 109–9), signed April 27, 2005. (Adds – 2319B to Title 17, which makes it a crime punishable with imprisonment to copy in a movie theater, without authorization, motion pictures or any audiovisual work protected under Title 17.); Intellectual Property Protection and Courts Amendment Act of 2004 (P.L. 108–482), signed December 23, 2004. (Amends the Trademark Act of 1946 to provide for increased criminal and civil penalties for individuals who willfully submit false information to a domain name registration authority in connection with an Internet address used to commit a crime or engage in online copyright or trademark infringement.); Satellite Home Viewer Extension and Reauthorization Act of 2004 (contained in Consolidated Appropriations Act, 2005, P.L. 108–447), signed December 8, 2004. (In addition to extending for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers and making a number of amendments to the existing section 119 of the Copyright Act, SHVERA directs the Copyright Office to conduct two studies and report its findings to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate. One study, due by December 31, 2005, required the Office to examine select portions of the section 119 license and to determine what, if any, impact sections 119 and 122 have had on copyright owners whose programming is transmitted by satellite carriers.); Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108–446), signed December 3, 2004. (Modifies – 121 of Title 17, providing for the establishment of the National Instructional Materials Accessibility Center ("NIMAS") and the free accessibility of certain materials — such as Braille, audio or digital text for use by the blind — via NIMAS.); Copyright Royalty and Distribution Reform Act of 2004 (P.L. 108–419), signed November 30, 2004. (Amends the Copyright Act to replace the Copyright Office copyright arbitration royalty panel system, created under the Copyright Royalty Tribunal Reform Act of 1993, with three copyright royalty judges to oversee adjustment of compulsory license royalty rates and distribution of copyright royalties.); Small Webcaster Settlement Act of 2002 (P.L. 107–321), enacted December 4, 2002. (Amends the Copyright Act to establish performance royalty rights for sound recordings transmitted through electronic digital technology.); Technology, Education, and Copyright Harmonization Act of 2002 (P.L. 107–273, Subtitle C of the· #1.
Lessig,“The New Chicago School”, 661.· #2.
See H. L. A. Hart, The Concept of Law, 2d ed. (New York: Oxford University Press, 1994), 6–13, 27–33.· #3.
For example, Illinois law states:“The third Monday in January of each year is a holiday to be observed throughout the State and to be known as the birthday of Dr. Martin Luther King, Jr.Within 10 days before the birthday of Dr. Martin Luther King, Jr., in each year the Governor shall issue a proclamation announcing the holiday and designating the official events that shall be held in honor of the memory of Dr. Martin Luther King, Jr., and his contributions to this nation”; 5 Illinois Comprehensive Statutes Annotated 490/65 (West 1998).· #4.
See Robert Cooter,“Expressive Law and Economics”,Journal of Legal Studies 27 (1998): 585.· #5.
Cf. Paul N. Bracken, The Command and Control of Nuclear Forces (New Haven: Yale University Press, 1983), 179–237; Christopher Chant and Ian Hogg, The Nuclear War File (London: Ebury Press, 1983), 68–115.· #6.
On the other side, the military built into the system technological brakes on the ability to launch, to ensure that no decision to launch was ever too easy; see also Daniel Ford, The Button: The Nuclear Trigger — Does It Work? (London: Allen and Unwin, 1985), 118–21.· #7.
“The phenomena of social meaning and incommensurability constrain rational choice (individual and collective). Generalizing, it is irrational to treat goods as commensurable where the use of a quantitative metric effaces some dimension of meaning essential to one’s purposes or goals. It would be irrational, for example, for a person who wanted to be a good colleague within an academic community to offer another scholar cash instead of comments on her manuscript. Against the background of social norms, the comment’s signification of respect cannot be reproduced by any amount of money; even to attempt the substitution conveys that the person does not value his colleague in the way appropriate to their relationship”; Dan M. Kahan,“Punishment Incommensurability”, Buffalo Criminal Law Review 1 (1998): 691, 695.· #8.
Many scholars, Robert Cooter most prominently among them, argue that norms are special because they are “internalized” in a sense that other constraints are not; see Robert D. Cooter,“Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant”,University of Pennsylvania Law Review 144 (1996): 1643, 1662; Robert D. Cooter,“The Theory of Market Modernization of Law”,International Review of Law and Economics 16 (1996): 141, 153. By internalization, Cooter is just describing the same sort of subjectivity that happens with the child and fire: the constraint moves from being an objectively ex post constraint to a subjectively ex ante constraint. The norm becomes a part of the person, such that the person feels its resistance before he acts, and hence its resistance controls his action before he acts. Once internalized, norms no longer need to be enforced to have force; their force has moved inside, as it were, and continues within this subjective perspective. In my view, we should see each constraint functioning in the same way: We subjectively come to account for the constraint through a process of internalization. Some internalization incentives may be stronger than others, of course. But that is just a difference.· #9.
Cf. Dan M. Kahan, “Ignorance of Law Is an Excuse — But Only for the Virtuous”, Michigan Law Review 96 (1997): 127.· #10.
See, for example, Schuster et al., Preserving the Built Heritage; Peter Katz, The New Urbanism: Toward an Architecture of Community (New York: McGraw-Hill, 1994); Duany and Plater-Zyberk, Towns and Town-Making Principles.· #11.
Michael Sorkin, Local Code: The Constitution of a City at 42N Latitude (New York: Princeton Architectural Press, 1993), 11, 127.
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