An Endnote on Regulating Cyberspace: Architecture vs Law?

Abstract

This 1998 article is an early analysis and application of Lessig's theory of cyberspace regulation. It is placed in the context of the (then) evolving nature of cyberspace and theories about it, from early 'digital libertarianism', to more dystopian views, to a proposal for the need for 'digital realism'. Five aspects of Lessig's 'code', and their significance, are discussed. Six illustrative examples of 'code' as regulation, drawn in part from Australian law, are considered: anonymity, cookies, spam black holes, P3P, Robot exclusion, and ECMS.The contents of the article are as follows:I. INTRODUCTION: KING CANUTE’S COMEBACKII. THE EVOLVING NATURE OF CYBERSPACEA. A Realm of Freedom? - The Myths of Digital LibertarianismB. A Realm of Surveillance? - A Dystopian View of CyberspaceIII. THEORIES OF CYBERSPACE REGULATION - DIGITAL REALISM NEEDEDIV. CYBERSPACE REGULATION AS A FUNCTION OF FOUR CONSTRAINTSA. Norms, Morality and Self-RegulationB. MarketsC. ‘Code’, ‘Nature’ and ‘Architecture’D. Law - Direct and Indirect RegulationV. FIVE FEATURES OF CYBERSPACE ARCHITECTURE AS REGULATIONA. Architecture is More than SoftwareB. Architecture has Immediacy as a ConstraintC. Most Architecture has High PlasticityD. The Legitimacy of Architecture Depends on Who Controls ItE. Default Settings Give Regulation by DefaultVI. REGULATION BY AND OF CYBERSPACE ARCHITECTURE - ILLUSTRATIVE EXAMPLESA. Building Anonymity into ArchitectureB. Cookies - Caller ID with Hidden Opt-OutC. Mandatory Surveillance Code - Interceptability and Decryption AbilityD. Spam Black Holes - Is Law Safe for ‘Return To Sender’ Architecture?E. Platform For Privacy Preferences (P3P) - What Can Protocols Achieve?F. Stopping Searching - Robot Exclusion StandardsG. Electronic Copyright Management Systems (ECMS) - ‘IP Phone Home’H. Copyright Circumvention Devices - Protecting Architecture

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