The Laws of Cyberspace - Lawrence Lessig

Topics: United States Constitution, Regulation, Federal government of the United States Pages: 17 (6041 words) Published: March 21, 2013
The Laws of Cyberspace
Lawrence Lessig † Draft 3

©Lessig 1998: This essay was presented at the Taiwan Net ’98 conference, in Taipei, March, 1998.

† Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Stud-

ies, Harvard Law School. Thanks to Tim Wu for extremely helpful comments on an earlier draft.

Lessig: The Laws of Cyberspace

Draft: April 3, 1998

Before the revolution, the Tsar in Russia had a system of internal passports. The people hated this system. These passports marked the estate from which you came, and this marking determined the places you could go, with whom you could associate, what you could be. The passports were badges that granted access, or barred access. They controlled what in the Russian state Russians could come to know. The Bolsheviks promised to change all this. They promised to abolish the internal passports. And soon upon their rise to power, they did just that. Russians were again free to travel where they wished. Where they could go was not determined by some document that they were required to carry with them. The abolition of the internal passport symbolized freedom for the Russian people — a democratization of citizenship in Russia. This freedom, however, was not to last. A decade and a half later, faced with the prospect of starving peasants flooding the cities looking for food, Stalin brought back the system of internal passports. Peasants were again tied to their rural land (a restriction that remained throughout the 1970s). Russians were once again restricted by what their passport permitted. Once again, to gain access to Russia, Russians had to show something about who they were. *** Behavior in the real world — this world, the world in which I am now speaking — is regulated by four sorts of constraints. Law is just one of those four constraints. Law regulates by sanctions imposed ex post — fail to pay your taxes, and you are likely to go to jail; steal my car, and you are also likely to go to jail. Law is the prominent of regulators. But it is just one of four. Social norms are a second. They also regulate. Social norms — understandings or expectations about how I ought to behave, enforced not through some centralized norm enforcer, but rather through the understandings and expectations of just about everyone within a particular community — direct and constrain my behavior in a far wider array of contexts than any law. Norms say what clothes I will wear — a suit, not a dress; they tell you to sit quietly, and politely, for at least 40 minutes while I speak; they or-


Lessig: The Laws of Cyberspace

Draft: April 3, 1998

ganize how we will interact after this talk is over. Norms guide behavior; in this sense, they function as a second regulatory constraint. The market is a third constraint. It regulates by price. The market limits the amount that I can spend on clothes; or the amount I can make from public speeches; it says I can command less for my writing than Madonna, or less from my singing than Pavarotti. Through the device of price, the market sets my opportunities, and through this range of opportunities, it regulates. And finally, there is the constraint of what some might call nature, but which I want to call “architecture.” This is the constraint of the world as I find it, even if this world as I find it is a world that others have made. That I cannot see through that wall is a constraint on my ability to know what is happening on the other side of the room. That there is no access-ramp to a library constrains the access of one bound to a wheelchair. These constraints, in the sense I mean here, regulate. To understand a regulation then we must understand the sum of these four constraints operating together. Any one alone cannot represent the effect of the four together. *** This is the age of the cyber-libertarian. It is a time when a certain hype about cyberspace has caught on. The hype goes like this: Cyberspace is unavoidable,...
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