Code 2.0

Problems with Courts

There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential about the constitutional or legal culture in which it is enacted — to protect that cultural attribute against changes in the future. A transformative constitution (or amendment) does the opposite: It tries to change something essential in the constitutional or legal culture in which it is enacted — to make life different in the future, to remake some part of the culture. The symbol of the codifying regime is Ulysses tied to the mast; the symbol of the transformative is revolutionary France.

Our Constitution has both regimes within it. The Constitution of 1789 — before the first ten amendments — was a transformative constitution. It “called into life” a new form of government and gave birth to a nation.[1] The Constitution of 1791 — the Bill of Rights — was a codifying constitution. Against the background of the new constitution, it sought to entrench certain values against future change.[2] The Civil War amendments were transformative again. They aimed to remake part of what the American social and legal culture had become — to rip out from the American soul a tradition of inequality and replace it with a tradition and practice of equality.[3]

Of these two regimes, the transformative is clearly the more difficult to realize. A codifying regime at least has inertia on its side; a transformative regime must fight. The codifying regime has a moment of self-affirmation; the transformative regime is haunted with self-doubt and vulnerable to being undermined by targeted opposition. Constitutional moments die, and when they do, the institutions charged with enforcing their commands, such as courts, face increasing political resistance. Flashes of enlightenment notwithstanding, the people retain or go back to their old ways, and courts find it hard to resist.

Our own constitutional history reveals just this pattern. The extraordinary moment after the Civil War — when three amendments committed to civil equality were carved into our Constitution’s soul — had passed by 1875. The nation gave up the struggle for equality and turned to the excitement of the Industrial Revolution. Laws enforcing segregation were upheld[4]; the right of African Americans to vote was denied[5]; laws enforcing what was later seen to be a new kind of slavery were allowed.[6] Only after one hundred years of continued inequality did the Supreme Court again take up the cause of the Civil War amendments. It would not be until Brown v. Board of Education, in 1954, that the Court again recognized the transformative idea of the Civil War amendments.[7]

One could criticize the Court for this century of weakness. I think it is more important to understand its source. Courts operate within a political context. They are the weakest branch of resistance within that political context. For a time, they may be able to insist on a principle greater than the moment, but that time will pass. If the world does not recognize the wrongness of its racist ways, even a strong statement of principle enacted within our Constitution’s text permits a court only so much freedom to resist. Courts are subject to the constraints of what “everyone” with a voice and the resources to make it heard believes is right, even if what “everyone” believes is inconsistent with basic constitutional texts.

Life is easier with a codifying constitution, because there is a tradition that the text is just meant to entrench. If this tradition is long-standing, then there is hope that it will remain solid as well.

But even a codifying constitution faces difficulties. Codification notwithstanding, if the passions of a nation become strong enough, there is often little that courts are willing to do. The clarity of the First Amendment’s protection of freedom of speech notwithstanding, when the speech was that of communists and anarchists, the government was allowed the power to punish.[8] The presumption of innocence and equality notwithstanding, when Japan bombed Pearl Harbor, the government was allowed to shuttle every West Coast American of Japanese descent into concentration camps.[9]

These are the realities of courts in a democratic system. We lawyers like to romanticize the courts, to imagine them as above influence. But they have never been so, completely or forever. They are subject to a political constraint that matters. They are an institution within a democracy, and no institution within a democracy can be the enemy of the people for long.

It is against this background that we should think about the problems raised in Part s 3 and 4. In each case, my argument was that we will need to choose the values we want cyberspace to embrace. These questions are not addressed by any clear constitutional text or tradition. In the main, they are questions affecting the codifying part of our tradition, but they are also cases of latent ambiguity. There is no “answer” to them in the sense of a judgment that seems to have been made and that a court can simply report. An answer must be fixed upon, not found; made, not discovered; chosen, not reported.

This creates difficulties for an American court. We live in the shadow of the Supreme Court of Chief Justice Earl Warren. Many people think (but I am not one of this crowd) that his was a wildly activist court, that it “made up” constitutional law and imposed its own “personal values” onto the political and legal system. Many viewed the Rehnquist Court as providing a balance to this activism of old.

I think this view is wrong. The Warren Court was not “activist” in any sense inconsistent with a principle of interpretive fidelity, and the Rehnquist Court was no less activist in that sense than the Warren Court. The question, however, is not what was true; the question is what people believe. What we believe is that the past was marked by activism, and that this activism was wrong.

At least wrong for a court. The opponents of the Warren Court are not just conservatives. Some are liberals who believe that the Court was not acting judicially.[10] These opponents believe that the Court was making, not finding, constitutional law — that it was guided by nothing more than whether it could muster a majority.

Any court risks seeming like a “Warren Court” when it makes judgments that don’t seem to flow plainly or obviously from a legal text. Any court is vulnerable when its judgments seem political. Against the background of history, our Supreme Court is particularly vulnerable to this view, and the Court will feel the reaction when its actions seem political.

My point is not that the Court fears retaliation; our Court is secure within our constitutional regime.[11] The Court feels the reaction to its seemingly political decisions because of its own image of its proper role. In its view, its role is not to be “political”; its conception is that it is to be a faithful agent, simply preserving founding commitments until they have changed.[12]

But when — as in the cases of latent ambiguity — there are no founding commitments to preserve, any attempt at translation will seem to be something more. And whenever it seems as if the Court is doing more than simply preserving founding commitments, the perception is created that the Court is simply acting to ratify its own views of a proper constitutional regime rather than enforcing judgments that have been constitutionalized by others.[13] In a word, it seems to be acting “politically.”

But what does “political” mean here? It does not mean simply that the Court is making value or policy choices. The claim is not that values are improper reasons for a court to decide a case. To the contrary: Value choices or policy choices, properly ratified by the political process, are appropriate for judicial enforcement. The problem with the choices in cases of latent ambiguity is that they do not seem to have been properly ratified by the political process. They reflect values, but the values do not seem to be taken from the Constitution.

“Political” thus refers to judgments not clearly ratified and presently contested.[14] When the very foundations of a judgment are seen to be fundamentally contested, and when there is no reason to believe that the Constitution takes a position on this contest, then enforcing a particular outcome of translation will appear, in that context, political.[15]

Cyberspace will press this problem intensely. When a framing value can be translated with some clarity or certainty, the Court can act in a way that resists present majorities in the name of founding commitments. But when ambiguities are latent and a choice really seems to be a choice, translation will not suffice. My claim is that the Court will not be the locus for that choice.

This might seem overly pessimistic, especially when we consider the success in striking down the Communications Decency Act.[16] But that case itself reveals the instability that I fear will soon resolve itself into passivity.

Throughout both lower court opinions, the courts spoke as if they were “finding” facts about the nature of cyberspace. The “findings” determined the constitutional result, and both courts reported their findings with a confidence that made them seem set in stone.

These findings, for the most part, were exceptionally good descriptions of where cyberspace was in 1996. But they did not tell us anything about where cyberspace is going or what it could be. The courts spoke as if they were telling us about the nature of cyberspace. But as we’ve seen, cyberspace has no intrinsic nature. It is as it is designed. By striking down Congress’s efforts to zone cyberspace, the courts were not telling us what cyberspace is but what it should be. They were making, not finding, the nature of cyberspace; their decisions are in part responsible for what cyberspace will become.

At first it will not seem this way. When we confront something new, it is hard to know what is natural or given about it, and what part can be changed. But over time courts will see that there is little in cyberspace that is “natural.” Limits on the architecture of cyberspace that they have reported as findings in one opinion will be seen to have been “design choices” later on. What was “impossible” will later become possible, and as these shifts in the possible occur, courts will more and more feel that they cannot really say what cyberspace is. They will see that their findings affect what they find. They will see that they are in part responsible for what cyberspace has become.

This is Heisenberg applied to constitutional law. And as courts notice it, as they have in other areas, they will increasingly defer to the political branches: If these judgments are policy, they will be left to policy makers, not judges.[17]

One can hardly blame judges for this. Indeed, in some cases their deference should be encouraged.[18] But we should not underestimate its consequences. In the future legislatures will act relatively unconstrained by courts; the values that we might call constitutional — whether enacted into our Constitution or not — will constrain these legislatures only if they choose to take them into account.

Before we turn to what we might expect from legislatures, consider one other problem with courts — specifically, the problem confronting our constitutional tradition as the Constitution moves into the context of cyberspace. This is the problem of “state action.”

Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import. Yet for the most part — and fortunately — these architectures are private. They are constructed by universities or corporations and implemented on wires no longer funded by the Defense Department. They are private and therefore traditionally outside the scope of constitutional review. The constitutional values of privacy, access, rights of anonymity, and equality need not trouble this new world, since this world is “private” and the Constitution is concerned only with “state action.”

Why this should be is not clear to me. If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase. Yet we are building it just outside the Constitution’s review. Indeed, we are building it just so that the Constitution will not govern — as if we want to be free of the constraints of value embedded by that tradition.

So far in this book, I have not relied very much on this private/public distinction. You might say I have ignored it.[19] But I have ignored it not because it makes no sense, but because I don’t know how it could be carried over to the regulation of cyberspace. The concept of state action itself presents a latent ambiguity, and I don’t think we have a clear idea of how to resolve it.

That latent ambiguity is this: The Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature, the laws of economics, the “natural law” of man; they were not made by government or man.

These architectures constrained, of course, and their constraint was a “regulation.” But the degree to which they could be used as tools of self-conscious control was limited. Town planning was not limited,[20] and beyond laying out a space, there was little these founders could do about the rules that would govern the built environment of this space.

Cyberspace, however, has different architectures, whose regulatory power are not so limited. An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity is possible, what access is granted, what speech will be heard — all these are choices, not “facts.” All these are designed, not found.

Our context, therefore, is very different. That the scope of constitutional review was limited in the first context does not compel it to be similarly limited in the second. It could be, but we cannot know that merely from its being so limited in a very different context.

We have no answer from the framers, then, about the scope of state action. We must decide on our own what makes better sense of our constitutional tradition. Is it more faithful to our tradition to allow these structures of control, the functional equivalent of law, to develop outside the scope of constitutional review? Or should we extend constitutional review to the structures of private regulation, to preserve those fundamental values within our tradition?

These are hard questions, though it is useful to note that they are not as hard to ask in other constitutional regimes. The German tradition, for example, would have less trouble with the idea that private structures of power must ultimately be checked against fundamental constitutional values.[21] The German tradition, of course, is not our own. But the fact that they have sustained this view suggests that we can make space for the constraint of the Constitution without turning everything into a constitutional dispute. Reasoned decision is possible without turning every private contract into a federal case.

Nevertheless, it will take a revolution in American constitutional law for the Court, self-consciously at least, to move beyond the limits of state action. Scholars have sketched how it could without radically remaking American law, but others have argued it could not without radically remaking the American Constitution.[22]

But my reason for ignoring the state action doctrine is not so much to radically remake law as it is to give us a clearer sense of how we should make the law in this new space in the first place. As Paul Berman puts it, the reason to ignore the state action doctrine for now is that:

Again, it remains likely that we will continue to suffer this cost.

It is in these two ways then that courts are stuck. They cannot be as creative, and the scope of their constitutional review has been narrowed (artificially, I believe) to exclude the most important aspect of cyberspace’s law — code. If there are decisions about where we should go, and choices about the values this space will include, then these are choices we can’t expect our courts to make.

Problems with Legislators

At a conference in former Soviet Georgia, sponsored by some Western agency of democracy, an Irish lawyer was trying to explain to the Georgians what was so great about a system of “judicial review” (the system by which courts can strike down the acts of a parliament). “Judicial review”, he enthused, “is wonderful. Whenever the court strikes down an act of parliament, the people naturally align themselves with the court, against the parliament. The parliament, people believe, is just political; the supreme court, they think, is principled. ” A Georgian friend, puppy-democrat that he was, asked, “So why is it that in a democracy the people are loyal to a nondemocratic institution and repulsed by the democratic institution in the system? ” “You just don’t understand democracy”, said the lawyer.

When we think about the question of governing cyberspace — when we think about the questions of choice I’ve sketched, especially those raised in Part III — we are likely to get a sinking feeling. It seems impossibly difficult, this idea of governing cyberspace. Who is cyberspace? Where would it vote? The very idea seems abhorrent to cyberspace itself.

But the problem here is not with governance in cyberspace. Our problem is with governance itself. There is no special set of dilemmas that cyberspace will present; there are only the familiar dilemmas of modern governance, but in a new place. Some things are different; the target of governance is different; the scope of international concerns is different. But the difficulty with governance will not come from this different target; the difficulty comes from our problem with governance.

Throughout this book, I’ve worked to identify the choices that cyberspace will present. I’ve argued that its very architecture is up for grabs and that, depending on who grabs it, there are several different ways it could turn out. Clearly some of these choices are collective — about how we collectively will live in this space. One would have thought that collective choices were problems of governance, but very few of us would want government to make these choices. Government seems the solution to no problem we have, and we should understand why this is. We should understand the Irish lawyer in all of us.

Our skepticism is not a point about principle. Most of us are not libertarians. We may be antigovernment, but for the most part we believe that there are collective values that ought to regulate private action. ( “Collective” just in the sense that all individuals acting alone will produce less of that value than if that individual action could be coordinated.) We are also committed to the idea that collective values should regulate the emerging technical world. Our problem is that we do not know how it should be regulated, or by whom. And we fear that the values that will be embraced are not the correct ones.

Like the Irish lawyer, we are weary of governments. We are profoundly skeptical about the product of democratic politics. We believe, rightly or not, that these processes have been captured by special interests more concerned with individual than collective values. Although we believe that there is a role for collective judgments, we are repulsed by the idea of placing the design of something as important as the Internet into the hands of governments.

The examples here are many, and the pattern is arresting. The single unifying message in the government’s own description of its role in cyberspace is that it should simply get out of the way. In the area of Internet commerce, the government says, commerce should take care of itself. ( Of course, at the same time, the government is passing all sorts of laws to increase the protections for intellectual property.) The government is also seemingly enthusiastic about regulating “indecent” content regardless of the thriving commerce in it.

A perfect example of this point is the government’s hand-off of control of the management of the domain name system. For some time the government had been thinking about how best to continue the governance or control of the domain name system.[24] It had originally farmed the work out under National Science Foundation contracts, first to a California nonprofit organized by the late Jon Postel, and then to a private for-profit corporation, Network Solutions.

The contracts were due to lapse in 1998, however, and for a year the government thought in earnest about what it should do. In June 1998 it released a White Paper calling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding the policy questions relating to governing the domain name system. Policy-making power was to be taken away from government and placed with an organization outside its control. In 1998, that policy was effected through the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), which, according to its webpage, is

Think about the kinds of questions my Georgian friend might ask about this move. A “nonprofit corporation devoted to the collective interest”? Isn’t that just what government is supposed to be? A board composed of representative stakeholders? Isn’t that what a Congress is? Indeed, my Georgian friend might observe that this corporate structure differs from government in only one salient way — there is no ongoing requirement of elections.

This is policy making vested in what is in effect an independent agency, but one wholly outside the democratic process. And what does this say about us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?

First, it reflects the pathetic resignation that most of us feel about the products of ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest — that, to steal the opening line from Justice Marshall’s last Supreme Court opinion, power, not reason, is now the currency of deliberative democracy.[26] We have lost the idea that ordinary government might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.

I understand this resignation, but it is something we must overcome. We must isolate the cause and separate it from the effect. If we hate government, it is not because the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. But we must find a way to get over that weariness.

One central cause of the dysfunction of government is the corruption suggested by the way government is elected. I don’t mean “corruption” in the traditional sense that saps the energy from so many developing nations. I don’t believe congressmen are on the take (California’s Randy Cunningham is an exception, of course[27]); I don’t believe their motives are impure. They are trying to do the best they can in the world they inhabit. But it is that world that is the problem.

For with that world, money controls attention. To become a member of the House of Representatives, you have to run. In 2004, if you ran in an open district, then you spent on average $1,086,437. If you won, you spent $1,442,216. If you ran against an incumbent in 2004, then there’s a 97.5 percent chance you didn’t win. (Only eight challengers won.) In the Senate, only one challenger defeated a sitting senator in 2004. Incumbency means life tenure in the United States. The average term for a member of Congress rivals the average term for a Supreme Court Justice.[28]

To raise this money, members of Congress must spend their time making those with money happy. They do this by listening to their problems, and sometimes, pushing legislation that will solve those problems. That sounds harmless enough, until you begin to realize just how much time they spend doing this fundraising. Former Senator Hollings estimated that one-third of a senator’s time is spent fundraising.[29] That’s probably a significant underestimate.[30]

Now just think about how absurd these priorities are. Congressmen work for us. If an employee of a restaurant spent 33 percent of her time arranging to get to work, she’d be fired. But that’s essentially what happens in Washington. The most significant chunk of time for members of Congress is time spent to raise money to remain members of Congress. Is this really what we pay them for?

The problem here is not so much that members of Congress aren’t doing their work. The problem is the way their work gets queered by this need to raise money. The easiest targets for fundraising are the clients of the lobbyists, and the lobbyists have lots of ideas about how to bend the law to benefit their clients.

And so Congress bends, and the law gets changed to benefit the most powerful in the economy. This is not capitalism as much as lobby-ism. Our economy is defined by a combination of laws benefiting some and power benefiting some.

To crack through lobbyism, you need a way to get the attention of members of Congress. But until the system is changed, the only way to get their attention is money. This is the cycle. Its results for democracy are vicious. Our Congress sees only what a small set want them to see. And what they see often has no obvious connection to the truth.

If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made — by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively and responsibly.

Problems with Code

At a Harvard workshop around the time the first edition of this book was published, Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates.” The problem is that “we haven’t had a conversation about how code regulates.” And then to the rest of the audience, she said, “Did all of you like the debate we had about whether Microsoft Word documents would carry in them a unique identifying number? Was that a satisfying debate? ”

Her irony carried with it an important insight, and an interesting mistake. Of course, for the computer scientist code is law. And if code is law, then obviously the question we should ask is: Who are the lawmakers? Who writes this law that regulates us? What role do we have in defining this regulation? What right do we have to know of the regulation? And how might we intervene to check it?

All that is perfectly obvious for someone who thinks and breathes the regulations of code. But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. Code does not regulate, any more than buildings regulate. Code is not public, any more than a television is public. Being able to debate and decide is an opportunity we require of public regulation, not of private action.

Camp’s mistake is a good one. It is a mistake more of us should make more of the time. Because while of course code is private, and of course different from the U.S. Code, its differences don’t mean there are not similarities as well. “East Coast Code” — law — regulates by enabling and limiting the options that individuals have, to the end of persuading them to behave in a certain way. “West Coast Code” does the same. East Coast Code does this by increasing the cost to those who would deviate from the rules required by the code. West Coast Code does the same. And while we might argue that East Coast Code is more prevalent — that it regulates and controls a far larger part of our lives — that is a difference in degree, not kind. It’s a reason to be balanced in our concern, not to be unconcerned.

Of course, there are differences between law and code. I don’t think that everything is necessarily public, or that the Constitution should regulate every aspect of private life. I don’t think it is a constitutional issue when I turn off Rush Limbaugh. But to say that there should be a difference is not to say that the difference should be as absolute as present constitutional thinking makes it. When we lawyers tell the Jean Camps of the world that they are simply making a “mistake” when they bring the values of public law to code, it is rather we who are making the mistake. Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition.

This won’t be easy, of course. Code is technical; courts aren’t well positioned to evaluate such technicality. But even so, the failure is not even to try. The formalism in American law, which puts beyond review these structures of control, is a third pathology that inhibits choice. Courts are disabled, legislatures pathetic, and code untouchable. That is our present condition. It is a combination that is deadly for action — a mix that guarantees that little good gets done.

Responses of a Judiciary

I’ve said that we should understand judicial hesitancy as grounded in prudence. When so much seems possible, and when a rule is not clearly set, it is hard for a court to look like a court as it decides what policies seem best.[1]

Although I agree with this ideal of prudence in general, we need to move its counsel along — to place it in context and limit its reach. We should isolate the source of the judge’s difficulty. Sometimes a certain hesitation before resolving the questions of the Constitution in cyberspace finally, or firmly, or with any pretense to permanence, is entirely appropriate. But in other cases, judges — especially lower court judges — should be stronger, because there are many of them and because many are extraordinarily talented and creative. Their voices would teach us something here, even if their rulings were temporary or limited in scope.

In cases of simple translation (where there are no latent ambiguities and our tradition seems to speak clearly), judges should firmly advance arguments that seek to preserve original values of liberty in a new context. In these cases there is an important space for activism. Judges should identify our values and defend them, not necessarily because these values are right, but because if we ignore them, we should do so only because they have been rejected — not by a court but by the people.

In cases where translation is not so simple (cases that have latent ambiguities), judges, especially lower court judges, have a different role. In these cases, judges should kvetch. They should talk about the questions these changes raise, and they should identify the competing values at stake. Even if the decision they must adopt in a particular case is deferential or passive, it should be deferential in protest. These cases may well be a place for prudence, but to justify their passivity and compensate for allowing rights claims to fail, judges should raise before the legal culture the conflict presented by them. Hard cases need not make bad law, but neither should they be treated as if they are easy.

That is the simplest response to the problem of latent ambiguity. But it is incomplete. It forces us to confront questions of constitutional value and to choose. A better solution would help resolve these questions. While it will never be the job of the courts to make final choices on questions of value, by raising these questions the courts may inspire others to decide them.

This is the idea behind the doctrine of a second look outlined twenty years ago by Guido Calabresi, a professor at the time who is now a judge.[2] Brutally simplified, the idea is this: When the Supreme Court confronts issues that present open, yet fundamental questions of value, it should be open about the conflict and acknowledge that it is not plainly resolved by the Constitution. But the Court should nonetheless proceed to resolve it in the way most likely to induce democratic review of the resolution. If the resolution induces the proper review, the Court should let stand the results of that review. The most the Court should do in such cases is ensure that democracy has its say; its job is not to substitute its values for the views of democrats.

Many ridicule this solution.[3] Many argue that the framers clearly had nothing like this in mind when they established a Supreme Court and permitted judicial review. Of course they did not have this in mind. The doctrine of a second look is not designed for the problems the framers had in mind. As a response to the problems of latent ambiguities, it itself reveals a latent ambiguity.

We might deny this ambiguity. We might argue that the framers envisioned that the Court would do nothing at all about latent ambiguities; that in such contexts the democratic process, through Article V, would step in to correct a misapplication or to respond to a changed circumstance. That may well have been their view. But I don’t think this intent is clear enough to foreclose our consideration of how we might best confront the coming series of questions on the application of constitutional value to cyberspace. I would rather err on the side of harmless activism than on the side of debilitating passivity. It is a tiny role for courts to play in the much larger conversation we need to have — but to date have not started.

Responses for Code

A second challenge is confronting the law in code — resolving, that is, just how we think about the regulatory power of code. Here are a number of ideas that together would push us toward a world where regulation imposed through code would have to satisfy constitutional norms.

Here again is the link to open code. In Chapter 8, when I described a kind of check that open code would impose on government regulation, I argued that it was harder for government to hide its regulations in open code, and easier for adopters to disable any regulations the government imposed. The movement from closed to open code was a movement from regulable to less regulable. Unless you are simply committed to disabling government’s power, this change cannot be unambiguously good.

But there are two parts to the constraint that open code might impose; one is certainly good, and the other is not necessarily terrible. The first part is transparency — the regulations would be known. The second part is resistance — that known regulations could be more easily resisted. The second part need not follow from the first, and it need not be debilitating. It may be easier to disable the regulations of code if the code is in the open. But if the regulation is legitimate, the state can require that it not be disabled. If it wants, it can punish those who disobey.

Compare the regulation of seatbelts. For a time the federal government required that new cars have automatic seatbelts. This was the regulation of code — the car would be made safer by regulating the code to force people to use seatbelts. Many people hated seatbelts, and some disabled them. But the virtue of the automatic seatbelt was that its regulation was transparent. No one doubted who was responsible for the rule the seatbelt imposed. If the state didn’t like it when people disabled their seatbelts, it was free to pass laws to punish them. In the end the government did not press the issue — not because it couldn’t, but because the political costs would have been too high. Politics checked the government’s regulation, just as it should.

This is the most we can expect of the regulation of code in cyberspace. There is a trade-off between transparency and effectiveness. Code regulation in the context of open code is more transparent but also less binding. Government’s power to achieve regulatory ends would be constrained by open code.

There is another benefit. Closed code would make it easier for the government to hide its regulation and thus achieve an illicit regulatory end. Thus, there is no simple defeat of government’s ends but instead a trade-off — between publicity and power, between the rules’ transparency and people’s obedience. It is an important check on government power to say that the only rules it should impose are those that would be obeyed if imposed transparently.

Does this mean that we should push for open rather than closed code? Does it mean that we should ban closed code?

No. It does not follow from these observations that we should ban closed code or that we must have a world with only open code. But they do point to the values we should insist on for any code that regulates. If code is a lawmaker, then it should embrace the values of a particular kind of lawmaking.

The core of these values is transparency. What a code regulation does should be at least as apparent as what a legal regulation does. Open code would provide that transparency — not for everyone (not everyone reads code), and not perfectly (badly written code hides its functions well), but more completely than closed code would.

Some closed code could provide this transparency. If code were more modular — if a code writer simply pulled parts off the shelf to plug into her system, as if she were buying spark plugs for a car — then even if the code for these components was closed, the functions and regulation of the end product would be open.[4] Componentized architecture could be as transparent as an open code architecture, and transparency could thus be achieved without opening the code.

The best code (from the perspective of constitutional values) is both modular and open. Modularity ensures that better components could be substituted for worse. And from a competitive perspective, modularity permits greater competition in the development of improvements in a particular coding project.

It is plausible, however, that particular bits of code could not be produced if they were produced as open code, that closed code may sometimes be necessary for competitive survival. If so, then the compromise of a component system would permit something of the best of both worlds — some competitive advantage along with transparency of function.

I’ve argued for transparent code because of the constitutional values it embeds. I have not argued against code as a regulator or against regulation. But I have argued that we insist on transparency in regulation and that we push code structures to enhance that transparency.

The law presently does not do this. Indeed, as Mark Lemley and David O’Brien argue, the existing structure of copyright protection for software tends to push the development of software away from a modular structure.[5] The law prefers opaque to transparent code; it constructs incentives to hide code rather than to make its functionality obvious.

Many have argued that the law’s present incentives are inefficient — that they tend to reduce competition in the production of software.[6] This may well be right. But the greater perversity is again constitutional. Our law creates an incentive to enclose as much of an intellectual commons as possible. It works against publicity and transparency, and helps to produce, in effect, a massive secret government.

Here is a place for concrete legal change. Without resolving the question of whether closed or open code is best, we could at least push closed code in a direction that would facilitate greater transparency. But the inertia of existing law — which gives software manufacturers effectively unlimited terms of protection — works against change. The politics are just not there.

Responses of a Democracy

In his rightly famous book Profiles in Courage, then-Senator John F. Kennedy tells the story of Daniel Webster, who, in the midst of a fight over a pact that he thought would divide the nation, said on the floor of the Senate, “Mr. President, I wish to speak today, not as a Massachusetts man, nor as a Northern man, but as an American . . . ”[7]

When Webster said this — in 1850 — the words “not as a Massachusetts man” had a significance that we are likely to miss today. To us, Webster’s statement seems perfectly ordinary. What else would he be but an American? How else would he speak?

But these words came on the cusp of a new time in the United States. They came just at the moment when the attention of American citizens was shifting from their citizenship in a state to their citizenship in the nation. Webster spoke just as it was becoming possible to identify yourself apart from your state and as a member of a nation.

As I’ve said, at the founding citizens of the United States (a contested concept itself) were citizens of particular states first. They were loyal to their own states because their lives were determined by where they lived. Other states were as remote to them as Tibet is to us — indeed, today it is easier for us to go to Tibet than it was then for a citizen of South Carolina to visit Maine.

Over time, of course, this changed. In the struggle leading up to the Civil War, in the battles over Reconstruction, and in the revolution of industry that followed, individual citizens’ sense of themselves as Americans grew. In those exchanges and struggles, a national identity was born. Only when citizens were engaged with citizens from other states was a nation created.

It is easy to forget these moments of transformation, and even easier to imagine that they happen only in the past. Yet no one can deny that the sense of being “an American” shifted in the nineteenth century, just as no one can deny that the sense of being “a European” is shifting in Europe today. Nations are built as people experience themselves inside a common political culture. This change continues for us today.

We stand today just a few years before where Webster stood in 1850. We stand on the brink of being able to say, “I speak as a citizen of the world”, without the ordinary person thinking, “What a nut.” We are just on the cusp of a time when ordinary citizens will begin to feel the effects of the regulations of other governments, just as the citizens of Massachusetts came to feel the effects of slavery and the citizens of Virginia came to feel the effects of a drive for freedom. As Nicholas Negroponte puts it, “Nations today are the wrong size. They are not small enough to be local and they are not large enough to be global. ”[8] This misfit will matter.

As we, citizens of the United States, spend more of our time and money in this space that is not part of any particular jurisdiction but subject to the regulations of all jurisdictions, we will increasingly ask questions about our status there. We will begin to feel the entitlement Webster felt, as an American, to speak about life in another part of the United States. For us, it will be the entitlement to speak about life in another part of the world, grounded in the feeling that there is a community of interests that reaches beyond diplomatic ties into the hearts of ordinary citizens.

What will we do then? When we feel we are part of a world, and that the world regulates us? What will we do when we need to make choices about how that world regulates us, and how we regulate it?

The weariness with government that I described at the end of the last chapter is not a condition without cause. But its cause is not the death of any ideal of democracy. We are all still democrats; we simply do not like what our democracy has produced. And we cannot imagine extending what we have to new domains like cyberspace. If there were just more of the same there — more of the excesses and betrayals of government as we have come to know it — then better that there should be less.

There are two problems here, though only one that is really tied to the argument of this book, and so only one that I will discuss in any depth. The other I mentioned at the end of the last chapter — the basic corruption in any system that would allow so much political influence to be peddled by those who hand out money. This is the corruption of campaign financing, a corruption not of people but of process. Even good souls in Congress have no choice but to spend an ever-increasing amount of their time raising an ever-increasing amount of money to compete in elections. This is an arms race, and our Supreme Court has effectively said that the Constitution requires it. Until this problem is solved, I have little faith in what our democracy will produce.

The solution to this problem is obvious, even if the details are extremely difficult: Spend public resources to fund public campaigns. The total cost of federal elections in 2004 was probably close to $4 billion.[9] In the same year, we spent $384 billion on defense and $66 billion on the war in Iraq.[10] Whatever you think about the wisdom of defense spending and the war in Iraq, at least the purposes of all three expenditures is the same — to preserve and promote democracy. Is there any doubt if we made campaign contributions essentially irrelevant to policy we’d have a more certain and positive effect on democracy than the other two?

But there is a second, oddly counterintuitive reason for this increasing failure of democracy. This is not that government listens too little to the views of the public; it is that government listens too much. Every fancy of the population gets echoed in polls, and these polls in turn pulse the democracy. Yet the message the polls transmit is not the message of democracy; their frequency and influence is not the product of increased significance. The President makes policy on the basis of overnight polling only because overnight polling is so easy.

This is partly a technology problem. Polls mark an interaction of technology and democracy that we are just beginning to understand. As the cost of monitoring the current view of the population drops, and as the machines for permanent monitoring of the population are built, we are producing a perpetual stream of data about what “the people” think about every issue that government might consider.

A certain kind of code perfects the machine of monitoring — code that automates perfect sample selection, that facilitates databases of results, and that simplifies the process of connecting. We rarely ask, however, whether perfect monitoring is a good.

It has never been our ideal — constitutionally at least — for democracy to be a perfect reflection of the present temperature of the people. Our framers were keen to design structures that would mediate the views of the people. Democracy was to be more than a string of excited utterances. It was to be deliberative, reflective, and balanced by limitations imposed by a constitution.

But maybe, to be consistent with the arguments from Part III, I should say that at least there was a latent ambiguity about this question. In a world where elections were extremely costly and communication was complicated, democracy had to get by with infrequent elections. Nevertheless, we cannot really know how the framers would have reacted to a technology that allows perfect and perpetual polling.

There is an important reason to be skeptical of the flash pulse of the people. The flash pulse is questionable not because the people are uneducated or incapable of good judgment, and not because democracy needs to fail, but because it is often the product of ignorance. People often have ill-informed or partially informed views that they simply repeat as judgments when they know that their judgments are not being particularly noticed or considered.

Technology encourages this. As a consequence of the massive increase in reporting on news, we are exposed to a greater range of information about the world today than ever before. This exposure, in turn, gives us confidence in our judgment. Never having heard of East Timor, people when asked about it might well have said, “I don’t know.” But having seen ten seconds on TV, or thirty lines on a Web portal news page, gives them a spin they didn’t have before. And they repeat this spin, with very little value added.

The solution to this problem is not less news or a ban on polling. The solution is a better kind of polling. The government reacts to bad poll data because that is the only data we have. But these polls are not the only possible kinds of polls. There are techniques for polling that compensate for the errors of the flash poll and produce judgments that are both more considered and more stable.

An example is the “deliberative” poll devised by Professor James Fishkin. Rather than a pulse, Fishkin’s polls seek an equilibrium.[11] They bring a cross-section of people together for a weekend at a time. These people, who represent all segments of a society, are given information before the poll that helps ensure that they know something about the subject matter. After being introduced to the topic of the poll, they are then divided into small juries and over the course of a couple of days argue about the topic at issue and exchange views about how best to resolve it. At the end they are asked about their views, and their responses at this point form the “results” of the poll.

The great advantage of this system is not only that information is provided but that the process is deliberative. The results emerge out of the reasoning of citizens debating with other citizens. People are not encouraged to just cast a ballot. They give reasons for their ballot, and those reasons will or will not persuade.

We could imagine (we could dream) of this process extending generally. We could imagine it becoming a staple of our political life — maybe one rule of citizenship. And if it did, it might well do good, as a counterweight to the flash pulse and the perpetually interested process that ordinary government is. It would be a corrective to the process we now have, one that might bring hope.

Cyberspace might make this process more possible; it certainly makes it even more necessary. It is possible to imagine using the architecture of the space to design deliberative forums, which could be used to implement Fishkin’s polling. But my message throughout is that cyberspace makes the need all the more urgent.[12]

There is a magic in a process where reasons count — not where experts rule or where only smart people have the vote, but where power is set in the face of reason. The magic is in a process where citizens give reasons and understand that power is constrained by these reasons.

This was the magic that Tocqueville wrote of when he told the world of the amazing system of juries in the United States. Citizens serving on juries must make reasoned, persuasive arguments in coming to decisions that often have extraordinary consequences for social and political life. Writing in 1835, Tocqueville said of juries:

It wasn’t Tocqueville, however, or any other theorist, who sold me on this ideal. It was a lawyer who first let me see the power of this idea — a lawyer from Madison, Wisconsin, my uncle, Richard Cates.

We live in a time when the sane vilify lawyers. No doubt lawyers are in part responsible for this. But I can’t accept it, and not only because I train lawyers for a living. I can’t accept it because etched into my memory is a picture my uncle sketched, explaining why he was a lawyer. In 1974 he had just returned from Washington, where he worked for the House Committee on Impeachment — of Nixon, not Clinton, though Hillary Rodham was working with him. I pressed him to tell me everything; I wanted to hear about the battles. It was not a topic that we discussed much at home. My parents were Republicans. My uncle was not.

My uncle’s job was to teach the congressmen about the facts in the case — to first learn everything that was known, and then to teach this to the members of the committee. Although there was much about his story that I will never forget, the most compelling part was not really related to the impeachment. My uncle was describing for me the essence of his job — both for the House and for his clients:

When it works, it does something to the people who experience this persuasion. Some, for the first time in their lives, see power constrained by reason. Not by votes, not by wealth, not by who someone knows — but by an argument that persuades. This is the magic of our system, however rare the miracles may be.

This picture stuck — not in the elitist version of experts deciding what’s best, nor in its populist version of excited crowds yelling opponents down, but in the simple version that juries know. And it is this simple picture that our current democracy misses. Where through deliberation, and understanding, and a process of building community, judgments get made about how to go on.

We could build some of this back into our democracy. The more we do, the less significant the flash pulses will be. And the less significant these flash pulses are, the more we might have faith again in that part of our tradition that made us revolutionaries in 1789 — the commitment to a form of government that respects deliberation and the people, and that stands opposed to corruption dressed in aristocratic baubles.